Exhibit 10.41
"Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission."
MICROSOFT LICENSE AGREEMENT FOR DESKTOP OPERATING SYSTEM PRODUCTS
#O5llO550216 dated October 1, 1998
with INSIGNIA SOLUTIONS, INC., a corporation of Delaware, USA
This License Agreement ("License Agreement") is made and entered into as of the
date first set forth above ("License Effective Date"), by and between MICROSOFT
LICENSING, INC., a Nevada, U.S.A. corporation, ("MS"), and the company specified
above ("COMPANY").
I. INCORPORATION OF BUSINESS TERMS DOCUMENT.
This License Agreement hereby incorporates by reference all of the terms of the
Microsoft General OEM Business Terms Document dated October 1, 1998, Number
5110550206 executed by MS and COMPANY (or by Microsoft Corporation and COMPANY
before January 1, 1998), as may be revised from time to time during the term of
this License Agreement by agreement of the parties ("Business Terms Document").
In the event the above-referenced Business Terms Document has not been executed
by the parties as of the date of MS' execution of this License Agreement, this
License Agreement shall be considered void. In the event of any inconsistencies
between this License Agreement and the Business Terms Document, the terms of
this License Agreement shall control.
II. LICENSE GRANT.
(a) Subject to limitations in, and COMPANY's compliance with, this License
Agreement, including the Business Terms Document incorporated herein and the
attached Exhibits, MS grants to COMPANY a non-exclusive, limited license to:
(i) install one (1) copy of Preinstalled Product Software; and
(ii) distribute inside the Customer System package:
(A) one (1) copy of Preinstalled Product Software;
(B) one (1) copy of Product software on external media (i.e., diskette
or CD-ROM) as acquired from Authorized Replicator; and
(C) one (1) copy of Product end user documentation as acquired from
Authorized Replicator.
(b) COMPANY's license shall extend to new Supplements, Update Releases, and
Version Releases following the release listed in Exhibit C.
(c) Except as otherwise provided in the applicable Exhibit C, COMPANY's license
rights shall be worldwide.
(d) COMPANY may grant to COMPANY Subsidiaries the limited rights granted to
COMPANY in (a) and (b) of this License Grant Section as well as any rights MS
may grant to COMPANY for Products licensed herein under a Supplement Addendum
during the term hereof, subject to all the terms and conditions set forth in
this License Agreement.
(e) (i) COMPANY's license to distribute the Product(s) is limited to
distribution only with those Customer System(s) described on Exhibit(s) C for
the particular Product(s) and only inside the Customer System package.
(ii) COMPANY shall comply with: (A) the additional provisions, if any,
provided in Exhibit(s) C with respect to Product(s); and (B) marketing or
advertising guidelines provided with the Product Deliverables or otherwise
provided in writing by MS.
(iii) COMPANY shall not modify or delete any part of the Product software
in any manner, except as expressly permitted in the applicable Exhibit C.
(iv) COMPANY may supplement but shall not modify or translate Product end
user documentation. COMPANY shall not remove or modify the package contents of
Product or APM.
(f) (i) COMPANY shall include APM with Product software distributed by COMPANY.
(ii) COMPANY must distribute one (1) copy of such Product end user
documentation as may be required by MS with and inside the package of each
Customer System distributed with Product software and/or hardware.
(g) All distribution and use of the Product is by license only. MS does not
authorize all or any portion of the Product to be "issued to the public", "put
into circulation", or subject to a "first sale" as the copyright laws may use
those (or similar) terms. COMPANY's license to distribute the Product is limited
to distribution of the Product by COMPANY to end users for use pursuant to the
XXXX.
(h) MS reserves all rights not expressly granted in the License Agreement(s)
including, without limitation, modification rights, translation rights, rental
rights, and rights to source code. MS expressly reserves its exclusive right
under applicable copyright, patent, and trademark laws to distribute copies of
Product by any means. Without limitation, MS does not authorize COMPANY, and MS
reserves its exclusive right, to distribute the Product separately from Customer
Systems; any such unauthorized distribution by COMPANY shall constitute a
violation of the License Agreement and MS' distribution right under applicable
law. COMPANY acknowledges that MS (and/or its suppliers, if applicable) shall
retain all copyright, patent, moral, trademark, title and other proprietary and
intellectual property in the Product software, Product Deliverables and
components thereof, in whole or in part in any form.
III. ADDITIONAL PAYMENT TERMS.
(a) COMPANY agrees to pay MS the royalties in Exhibit(s) C in accordance with
Section 3 of the Business Terms Document. Royalties are based upon COMPANY's
estimated shipment volume indicated in Exhibit(s) C.
IV. LICENSE TERM.
The term of this License Agreement shall run from the License Effective Date
until one ( 1) year from the end of the calendar month in which the License
Effective Date occurs.
V. ENTIRE AGREEMENT.
This License Agreement does not constitute an offer by MS, and it shall not be
effective until signed by both parties. Upon execution by both parties. this
License Agreement together with the Business Terms Document as incorporated
herein shall constitute the entire agreement between the parties with respect to
the subject matter hereof and merges all prior and contemporaneous
communications.
VI. EXHIBITS.
The following Exhibits are part of this License Agreement:
Exhibit C1 - Windows Desktop Family
Exhibit D - Brand Names and Trademarks
Exhibit N2 - Additional Addresses
The terms of the Exhibit(s) shall supersede any inconsistent terms contained in
this License Agreement.
CONFIDENTIAL
VII. PRIOR AGREEMENT.
Provided that, as of the Effective Date of this License Agreement.
COMPANY has complied with all terms and conditions, including payment, under
DTOS dated March 1, 1996 between COMPANY and MS (or between COMPANY and
MSCORP. as assigned to MS), MS Contract No. 4556-6079 (hereinafter the "PRIOR
AGREEMENT"):
(a) the difference of i) the initial payments made by COMPANY pursuant to
Exhibit(s) C of the PRIOR AGREEMENT, minus ii) the amount of such initial
payments determined to be due to MS under the terms of the PRIOR AGREEMENT
shall be carried forward to this Agreement. If amounts due MS equal or exceed
initial payments, no amount shall be carried forward. Any initial payments
carried forward pursuant to this provision may be applied only against initial
payments due in accordance with Exhibit(s) C of this Agreement, and
(b) the PRIOR AGREEMENT shall be deemed to be terminated as of the Effective
Date hereof.
NOTICE:
For Product(s) specified in Exhibit C as licensed under the "per system" royalty
calculation provisions, please note the following:
This is a Microsoft Per System License. As a Customer, you may create a "New
System" at any time that does not require the payment of a royalty to Microsoft
unless the Customer and Microsoft agree to add it to the License Agreement.
Any New System created may be identical in every respect to a system as to which
the Customer pays a Per System royalty to Microsoft provided that the New System
has a unique model number or model name for internal and external identification
purposes which distinguishes it from any system the Customer sells that is
included in a Per System License. The requirement of external identification may
be satisfied by placement of the unique model name or model number on the
machine and its container (if any), without more.
If the Customer does not intend to include a Microsoft operating system product
with a New System, the Customer does not need to notify Microsoft at any time of
the creation, use or sale of any such New System, nor does it need to take any
particular steps to market or advertise the New System.
Under Microsoft's License Agreement, there is no charge or penalty if a Customer
chooses at any time to create a New System incorporating a non-Microsoft
operating system. If the Customer intends to include a Microsoft operating
system product with the New System, the Customer must so notify Microsoft, after
which the parties may enter into arm's length negotiation with respect to a
license to apply to the New System.
IN WITNESS WHEREOF, the parties have executed this License Agreement by their
duly authorized representatives as of the date set forth above. All signed
copies of this License Agreement shall be deemed originals. Each individual
signing on behalf of COMPANY below hereby represents and warrants that he or she
has full authority to sign this License Agreement and bind COMPANY to perform
all duties and obligations contemplated by this License Agreement. If COMPANY is
located in a jurisdiction in which a corporate seal or "chop" is commonly used
as an instrument of agreement execution, in addition to the individual signature
provided below, COMPANY's seal or "chop" should be entered below COMPANY's
signature block.
MICROSOFT LICENSING, INC. INSIGNIA SOLUTIONS, INC.
/s/ Xxxxx Xxxx /s/ Xxxxxxx Xxxxxx
------------------------------- --------------------------------
By (Signature) By (Signature)
Xxxxx Xxxx Xxxxxxx Xxxxxx
------------------------------- --------------------------------
Name (Print) Name (Print)
OEM Accounting Manager Chief Financial Officer, VP, Secretary
------------------------------- --------------------------------
Title Title
October 29, 1998 25 September 1998
------------------------------- --------------------------------
Date Date
COMPANY's seal or "chop"
NOTICE:
This is an OEM distribution license. Product can only be distributed with a
Customer System, as specified in the License Grant Section hereof.
2
CONFIDENTIAL
Microsoft License Agreement [or Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
EXHIBIT C1
WINDOWS DESKTOP FAMILY
PRODUCT TABLE(S)
Product Name Language Applicable Royalty*** Basis (e.g., Estimated Billing Type****
And Version* Versions** Additional Per Copy or Monthly
Provisions Per System) Volume
------------ ---------- ---------- ---------- ------------ --------- ----------------
Microsoft-Register Trademark-
Windows-Registered Trademark- (17),(99) * Per System- *
Desktop Family
Microsoft-Register Trademark- AR, CA, CS, DA, (20),(21),(24), Royalty Type II
MS-DOS-Register Trademark- DE, EL, EN, ES, (25),(26),(30), Specified
Version 6.22 FI, FR, HU, IT, (31),(52),(99) for the
with Xxxxxxxx XX, XX, XX, XX, Family
Tools Version NO, PL, PT, RU, Above
1.02, and SL, SV, TH, TR,
Microsoft XT, XZ, YL, ZH
Windows(&
for
Workgroups
Version 3.11
Microsoft-Register Trademark- AR, CS, DA, DE, (18),(20),(21), * Type II
Windows EL, EN, ES, FI, (27),(28),(29), In Addition
NT-Register Trademark- FR, HU, IT, IW, (30),(31),(99) to the
Workstation JA, KO, NL, NO, Royalty
Version 4.0 PL, PT, RU, SL, Specified
(1-2 Processor SV, TH, TR, XC, for the
Version) XT, XZ, ZH Family Above
Microsoft-Register Trademark- AR, CS, DA, DE, (18),(20),(21), * Type II
Windows EL, EN, ES, FI, (27),(28),(29), In Addition
NT-Register Trademark- FR, HU, IT, IW, (30),(31),(99) to the
Workstation JA, KO, NL, NO, Royalty
Version 4.0 PL, PT, RU, SL, Specified
(1-4 Processor SV, TH, TR, XC, for the
Version) XT, XZ, YL, ZH Family Above
Microsoft-Register Trademark- CS, DA, DE, EL, (18),(20),(21), * Type I
Windows EN, ES, FI, FR, (27),(28),(29), In Addition
NT-Register Trademark- HU, IT, IW, JA, (30),(31),(32), to the Royalty
Workstation KO, NL, NO, PL, (99) Specified
Version 5.0 PT, RU, SV, TR, for the
(1-2 Processor XT, ZH Family Above
Version)
Microsoft-Register Trademark- AR, CS, DA, DE, (18),(20).(21), * Type I
Windows EL, EN, ES, FI, (27),(28),(29), In Addition
NT-Register Trademark- FR, HU, IT, IW, (30),(31),(32), to the Royalty
Workstation JA, KO, NL, NO, (99) Specified
Version 5.0 PL, PT, RU, SV, for the
(1-4 Processor TR, XC, XT, ZH Family Above
Version)
Microsoft-Register Trademark- AR, CA, CS, DA, (18),(19),(20), Royalty Type II
Windows-Register Trademark-95 DE, EL, EN, ES, (21),(26),(30), Specified
EU, FA, FI, FR, (31),(99) for the
HU, IT, IW, JA, Family Above
KO, NL, NO, PL,
PT, RU, SK, SL,
SV, TH, TR, VI,
XC, XT, ZH, ZY
3
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
Microsoft-Register Trademark- AR, CS, DA, DE, (18),(19),(20), Royalty Type II
Windows 95 EL, EN, ES, FI, (21),(26),(30), Specified
FR, HU, IT, IW, (31),(99) for the
JA, KO, NL, NO, Family Above
PL, PT, RU, SK,
SL, SV, TR, XC,
XT, ZH.
* Other Available Versions: If the release listed in the Product Table above is
not available in a particular licensed language, COMPANY may receive Product
Deliverables for the latest available preceding release of such Product in such
language by sending written notice to MS as specified below. If COMPANY is
licensed for the EN version of a Product in the Product table and at least one
(1) other language version of the same Product, then in addition to the language
versions specified in the Product table above for such Product, COMPANY may
receive Product Deliverables for the licensed Product in other available
language versions by sending a written request to MS as specified below. All
such COMPANY requests for additional Product Deliverables shall be sent to the
attention of OEM Accounting Services at the address for royalty reports listed
in Exhibit NI of the Business Terms Document. Any such additional language
version(s) or preceding version(s) added by notice shall be deemed licensed
hereunder on the same basis (i.e., "per system" or "per copy") as the versions
listed in the table above. For language version(s) added by notice, COMPANY
shall pay MS the highest royalty rate specified in the Product table above for
licensed language versions of such Product.
** Language Version Key: Please refer to the Language Version Key in Exhibit L
of the Business Terms Document for explanation of Language Version codes.
Localized versions are licensed on an if and as available basis.
*** A Product is not licensed hereunder unless royalty rate(s) are indicated in
the Product table of this Exhibit C.
**** Billing Type: Type I - based on third party reports, Type II - based on
COMPANY royalty reports, as specifically set forth in Section 3(e) of the
Business Terms Document.
INITIAL PAYMENT AMOUNT
The Initial Payment Amount for Products licensed under this Exhibit C shall
be *, and shall be paid in accordance with Section 3(b) of the Business Terms
Document, as incorporated by reference into the License Agreement.
ADDITIONAL PROVISIONS KEY
(Note: Only those Additional Provisions applicable to licensed Product(s) may
appear. Section numbering may not be consecutive.)
(17) If COMPANY is licensed for the Windows Desktop Family, COMPANY may
distribute not more than one (1) of the listed Product combinations or Products
[e.g.: Microsoft MS-DOS with Enhanced Tools and Windows for Workgroups, or
Windows 95, or Windows NT Workstation Version 4 (1-2 Processor Version), or
Windows NT Workstation Version 5 (1-4 Processor Version), etc.] with each
licensed Customer System. COMPANY's report shall separately indicate the
quantity of each such Product or combination that COMPANY distributes.
(18) (a) COMPANY is not licensed to, and agrees that it will not, modify, in any
way, or delete any aspect of the Product software (including, without
limitation, any features, shortcuts, icons, Active Desktop components (as
described in the OPK), "wizards", folders (including subfolders) or programs of
Product software) as delivered in the Product Deliverables, except if and as
specifically permitted below or in the OPK User's Guide ("OPK") provided in the
Product Deliverables. In particular, and without limitation, this means that
COMPANY is not licensed to and agrees that it will not:
(i) Modify or obscure, in any way, the sequence or appearance of any
screens displayed by the Product software as delivered in the Product
Deliverables from the time the Customer System completes BIOS processing after
being switched on by the end user and transfers control to the Product software
loaded from the hard disk ("End User Boot") until the time that the "welcome
screen" program has been run and closed by the end user and the Customer System
displays the Product software "desktop" screen defined in the OPK ("Desktop
Screen").
(ii) Except as provided in (iii), display any content (including visual
displays or sound) from End User Boot through and including the time that the
Customer System has displayed the Desktop Screen.
(iii) Modify or obscure, in any way, the appearance of the Desktop Screen
(including without limitation, the addition or modification of background
wallpaper bitmaps displayed upon End User Boot); provided, however, that (A)
COMPANY may add icons or folders to the Desktop Screen provided that any such
icons are the same size and substantially similar shape as icons included on the
Desktop Screen as delivered in the Product Deliverables and that any such
folders are the same size, shape and appearance as folders included on the
Desktop Screen as delivered in the Product Deliverables and (B) COMPANY may
further modify the Desktop Screen when running in "Active Desktop" mode as
provided below in (b).
(iv) Use any portion of Product software to enable any programs or other
content to run or appear prior to End User Boot.
4
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
(v) Configure any programs (including without limitation any "shells",
"screen savers" or "welcome" scripts), "wizards" or other content to be
enabled, run or initialized automatically (i.e. without requiring a
deliberate act of the end user) from an icon or folder on the Desktop Screen
or from the "Start" Menu of the Desktop Screen or otherwise. By way of
example only, and without limiting the generality of the foregoing, COMPANY
agrees that it shall not (1) populate with any programs or other content the
Product software "Start-up" directory (e.g., "Windows\Start
Menu\Programs\StartUp" folder for Windows 95, or 0%windir%\profiles\-LESS
THAN-user(s)-GREATER THAN-\Start Menu\Programs\Startup" folder for Windows NT
Workstation 4.0) or (2) populate the boot.ini, config_sys, autoexec.bat,
win.ini, system.ini, system.dat or user.dat files in any manner which will
cause any program or content to run or load automatically upon End User Boot,
except for device drivers necessary to support preinstalled or preconfigured
hardware devices (e.g., network cards, printers, etc.).
(vi) Modify or add content to any directories installed by the Product
software, except as permitted in the OPK for Active Desktop customization and
for preinstallation of applications by COMPANY.
(b)(i) if the Product software includes the ability to run in "Active Desktop"
mode, COMPANY may customize the Active Desktop in the Preinstalled Product
Software in accordance with the instructions for customization provided in the
OPK, provided COMPANY otherwise complies fully with Additional Provision (18)(a)
above. Upon request, MS shall provide COMPANY with a copy of any such
instructions.
(ii) In order to perform the customizations provided in the OPK, MS shall
provide COMPANY with an Internet Explorer Administration Kit ("IEAK") or other
kit. MS grants to COMPANY a nonexclusive, limited worldwide, royalty-free
license during the term of the License Agreement to use the IEAK to customize
the Preinstalled Product Software provided that COMPANY shall use the IEAK
specific to such release of Product and solely in accordance with the
instructions in the OPK. In the event that the capabilities and/or instructions
of the IEAK are in conflict the customizations authorized in the OPK (e.g. the
IEAK provides different customization capabilities than those authorized in the
OPK), the instructions in the OPK shall take precedence.
(19) COMPANY shall include a full copy of the back-up disk images ("CAB" files)
contained in the OPK and such other directories or files as specified in the OPK
on the hard disk drive of each Customer System distributed with the Product. If,
and only if, COMPANY distributes the Product software solely as Preinstalled
Product Software (i.e., without a back-up copy of the Product on CD, diskette,
magnetic tape, or other external media) with any Customer System that is
designed to include or be used with a 3.5" disk drive, then COMPANY shall also
preinstall the Microsoft Create System Disk Tool contained in the OPK on the
hard disk drive of such Customer System to enable the end user to make a back-up
copy of the Product software according to the terms of the XXXX. Diskette images
may only be used with the Microsoft Create System Disk Tool. COMPANY may not
distribute, use, or authorize the use of the Microsoft Create System Disk Tool
or diskette images except as provided in this Additional Provision or as
specified in the OPK.
(20) Notwithstanding anything to the contrary contained in the License Agreement
(including Exhibits and the Business Terms Document as incorporated therein),
COMPANY may distribute Product(s) only with Customer Systems which are marketed
and distributed exclusively under COMPANY's or COMPANY Subsidiaries' brand
names, trade names and trademarks. The Product(s) may not be distributed with
Customer Systems which are marketed or distributed under any name which includes
any third party brand names, trade names or trademarks.
(21) The royalty rate(s) specified above require pre-installation of the Product
as the "default" operating system on each Customer System distributed with the
Product (i.e., the Product will set up and execute unless the user configures
the Customer System otherwise). COMPANY shall preinstall the Product software
solely in accordance with the installation instructions set forth in the "OPK
User's Guide" included in the preinstallation kit portion of the Product
Deliverables ("OPK"). COMPANY may use the information, tools and materials
contained in the OPK solely to preinstall the Product software in accordance
with the OPK User's Guide and for no other purpose. Other than as specified in
the OPK User's Guide, COMPANY shall not modify the Product software, nor delete
or remove any features or functionality without the written approval of MS in
each instance.
(24) Windows for Workgroups version 3.11 includes Microsoft At Work fax
transmission software, which provides methods for stand-alone and networked
computers to send and receive fax messages with certain security levels. French
law (Decree 92-1358 of December 1992) generally prohibits the use in France of
such technology, unless special approvals are granted. Accordingly, OEMs should
provide only the version of Windows for Workgroups version 3.11 designed for
France to avoid violating the Decree.
(25) The Japanese language version of the MS-DOS operating system is version
6.2/V. The Japanese language version of Enhanced Tools for MS-DOS 6 is 1.0/V.
(26) (a) Notwithstanding anything to the contrary in Section 11 of the License
Agreement and in Sections 2 and 6 of the Business Terms Document, COMPANY may
install one or more language versions (listed in the Language Version box above)
of Product software with each applicable Customer System provided that COMPANY
complies with the following restrictions:
(i) COMPANY may distribute such multiple language versions of Product
software only in the form of Preinstalled Product Software. COMPANY may
distribute only one backup copy of Product software in one language version for
use on each such Customer System;
(ii) COMPANY shall use the set-up utility included in the Product
Deliverables which allows the end-user to choose one, and only one, language
version of Product for the Customer System.
(iii) COMPANY shall follow all guidelines and procedures set forth in the
Product Deliverables regarding the installation, set-up, and initialization of
multiple language versions of Product software, and
5
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
(iv) COMPANY shall clearly indicate to end-users, including without
limitation, in advertising and on Customer System packaging, that end-users
shall have access to one language version only.
(b) COMPANY hereby indemnifies MS and its suppliers from and against all
damages, costs and attorneys' fees arising from claims or demands resulting from
COMPANY's distribution of multiple language versions including, without
limitation, claims that the end-user is entitled to use more than one language
version of the Product or that advertisements, Customer System packaging, or
other representations made by or for COMPANY are false and/or misleading.
(c) COMPANY's report shall separately indicate the number of Customer Systems
distributed with each combination of language versions of Product.
(d) Provided COMPANY complies with all terms and conditions of the License
Agreement, including the Business Terms Document as incorporated therein and
this Additional Provision (26), for purposes or the royalty calculation
provisions of Section 3 of the Business Terms Document, preinstallation of
multiple language versions of Product performed in accordance with the
instructions for multiple language installation provided in the OPK shall
constitute "one language" version. In such event, COMPANY shall pay the highest
royalty applicable to the language versions distributed.
(e) If COMPANY does not comply with all of the requirements stated above, in
addition to any other remedies MS may have, COMPANY shall pay MS the applicable
royalty for each language version of Product software included with the Customer
System.
(27) In order to support end-users of this Product, COMPANY agrees to employ at
all times at least one (1) support technician who has successfully completed, at
COMPANY's expense, the Microsoft Certified Professional program for this
Product.
(28) (a) Though the Product Deliverables for this Product may include versions
of the Product designed for other types of microprocessors, COMPANY is licensed
to distribute the Product only with and for use on Customer Systems based on the
Intel x86, Pentium or compatible architecture.
(b) COMPANY shall include a full copy of the \i386 directory, \support directory
(except\support\opk\support\hqtool and \support\scsitool subdirectories), and
\drvlib directory contained in the OPK on the hard disk drive of each Customer
System distributed with the Product.
(29) COMPANY is not licensed to distribute this Product on Customer Systems
which are capable of utilizing more microprocessors than the number specified in
the Product table above.
(30) The Default Charge for this Product as described in Section 3(c)(vi) of the
Business Terms Document shall be thirty percent (30%) of the highest royalty
rate for the Product stated in the Product table above.
(31) COMPANY may not distribute more than one Windows operating system (e.g.,
Windows for Workgroups, Windows 95, Windows 98, or Windows NT Workstation) with
the same Customer System.
(32) COMPANY agrees that MS may, in its sole discretion, change the Billing Type
for this Product to Type II upon prior written notice to COMPANY.
(52) (a) The Chinese (Simplified) language versions of MS-DOS are available with
only simplified Chinese character fonts licensed from a third party. COMPANY
acknowledges that such fonts may differ in quality and characteristics to
Chinese character fonts available in other Microsoft Products.
(b) The Chinese (Simplified) language versions of MS-DOS are available only
through selected Authorized Replicators as specified by MS. From time to time,
MS shall provide an updated list of Authorized Replicators through which the
Chinese (Simplified) language version of this Product is available.
(c) The packaging for the Chinese (Simplified) language version of this Product
distributed with Customer Systems within or to the PRC shall be clearly marked
in both English and simplified Chinese, "Not for distribution or use outside the
People's Republic of China".
(99) COMPANY may grant end user organizations which acquire at least fifty (50)
units of Customer Systems ("End User Organizations") the right to install
Customer Systems either from a network or from a master CD Supplied by the
COMPANY and will not be required to provide product manual and certificate of
authenticity, but only if the following conditions are satisfied:
(a) COMPANY and the End User Organization enter into a written agreement
(hereinafter "Volume Purchase Agreement") that requires such End User
Organization:
(i) to comply with obligations substantially the same as those imposed on
COMPANY by Sections 6(a)(ii), 6(b), 7(a), 7(c), 14, and 17(b) of the
Business Terms Document;
(ii) to cease installation of Product software upon notice from COMPANY or
MS of the termination or expiration of this License Agreement, or
suspension of any license rights for such Product(s);
(iii) to provide monthly reports to COMPANY which shall specify by Product,
the number of copies of each Product installed by the End User Organization
during the most recent month; and
(iv) to pay MS or COMPANY's attorneys' fees if COMPANY or MS employs
attorneys to enforce any rights arising out of the Volume Purchase
Agreement.
6
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
(b) The Volume Purchase Agreement shall name MS as a third party beneficiary
of the Volume Purchase Agreement with respect to (MS) Product
software and that MS shall have the right to enforce the terms and
conditions of the Volume Purchase Agreement (including without limitation
the ability to audit the End User Organization in accordance
with Section 14(b) of the Business Terms Document as they relate to MS
Product software.
(c) COMPANY shall maintain at its principal office proper records and entries
which specify by End User Organization, Product, the number of copies
of each Product installed by each End User Organization authorized to
exercise any rights or COMPANY pursuant to this Agreement; and
(d) Within thirty (30) days after request by MS, COMPANY shall provide MS with
a list of End User Organization authorized to exercise installation rights
pursuant to this License Agreement, and shall provide MS with a true,
correct and complete copy of any Volume Purchase specifically requested by
MS, or at the option of COMPANY, a written summary of the terms of the
Volume Purchase Agreement in sufficient detail for MS to determine whether
such agreement complies with the requirements of this additional Provision
(99)(a), and such other information about the End User Organization as MS
may reasonably request. Upon request by MS, COMPANY shall promptly notify
MS of the termination, expiration or significant modification of the terms
of such Volume Purchase Agreement(s).
(e) COMPANY shall provide reasonable assistance and cooperation to remedy any
material non-compliance with the terms of this Section 6(c) by any End
User Organization.
(f) Notwithstanding the definition of Customer System in Section I (d) of the
Business Terms Document and below, for purposes of the distribution of the
Product under this License Agreement only, the term "Customer System"
shall mean COMPANY's SoftWindows X emulation software.
(g) This Product may be distributed through retail channels directly to end
users only. It must be individually shrinkwrapped and not combined
with any other product.
CUSTOMER SYSTEMS
COMPANY's Customer Systems shall be the assembled computer systems described in
the table below which (i) are configured for use only by a single user; (ii) are
designed to use a video display and keyboard; and (iii) include at least a CPU,
a motherboard, a power supply, a hard disk drive (except if the Product software
is installed in ROM), and a case. Each listed Customer System must have a unique
model line name, model name, or model number which COMPANY uses both internally
(in COMPANY's books and records) and externally (on the Customer System case and
packaging). For each Product which COMPANY chooses to license for distribution
with the listed Customer System, the letter "s" or "c" in the relevant box
indicates whether COMPANY is licensing the Product on a "per system" or "per
copy" basis, respectively. New models may be added by agreement of the parties.
At COMPANY's option, for purposes of administrative convenience, COMPANY may
designate models by model line or series (e.g., "Jaguar model line", "Jaguar Pro
series", "Jaguar Pro 750 model line", "Jaguar Pro 950 series", etc.). Customer
Systems defined by model line or series shall include all present models which
include the designated model line or series name, (e.g., "Jaguar Pro model line"
includes Jaguar Pro, Jaguar Pro 950, Jaguar Pro S, etc.; "Jaguar series"
includes Jaguar, Jaguar Pro, Jaguar Pro 950, Jaguar S400, etc.; "Jaguar Pro 950
series" includes Jaguar Pro 950, Jaguar Pro 955, etc.).
In the event that COMPANY designates models by model line or series in this
Exhibit C, then COMPANY may elect to include as Customer System(s) new models in
the model line or series by including any such new model(s) on its royalty
report for the reporting period in which each such new model is first
distributed with the Product. Unless otherwise agreed to by the parties prior to
COMPANY's first distribution of a new model with the Product, each such new
model designated on a royalty report shall be licensed for the remainder of the
term of the License Agreement on the same basis (i.e., per system or per copy)
as the other models in the model line or series and shall bear the applicable
royalty set forth in this Exhibit C. Any new model in the model line or series
which is not included in a royalty report as a licensed Customer System (and is
thus not licensed for the applicable Product) must have a unique model number or
model name used for internal and external identification purposes which
distinguishes it from any model which COMPANY has designated previously as a
Customer System.
Product Number Key:
Item # Legal Name
2076 Microsoft-Registered Trademark- Windows-Registered Trademark-Desktop Family
Royalty Basis Key: C = per copy; S = per system; if Product box is blank in the
Customer System Table below, such Product is not licensed for distribution with
the listed Customer System.
CUSTOMER SYSTEM TABLE
Model Name/Model Number Processor 2076
SoftWindows 95 PENTIUM OR S
COMPARABLE
SoftWindows 98 PENTIUM OR S
COMPARABLE
SoftWindows NT PENTIUM OR S
COMPARABLE
7
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
COMPANY hereby represents and warrants that the names and numbers indicated in
the Model Name or Model Number column in the table above accurately denote the
actual designation used by COMPANY to identify the listed models (on the
Customer System case and in COMPANY's internal books and records).
8
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
EXHIBIT D
BRAND NAMES AND TRADEMARKS
COMPANY AND COMPANY SUBSIDIARIES BRAND NAMES AND TRADEMARKS
If COMPANY Customer Systems are marketed, licensed, or distributed under
COMPANY's or COMPANY Subsidiaries' brand names and trademarks which do not
include COMPANY's name, those brand names and trademarks must be listed below:
THIRD PARTY BRAND NAMES AND TRADEMARKS
If COMPANY Customer Systems are marketed, licensed, or distributed by a third
party under brand names and trademarks which do not include COMPANY's name,
those brand names, trademarks and model names used for the Customer Systems by a
third party must be listed below. Certain Products may NOT be marketed or
distributed under any third party brand names or trademarks. Such Products are
indicated in the applicable Exhibit(s) C.
9
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products,
#5110550216-5 dated October 1, 1998, between MICROSOFT LICENSING, INC. and
INSIGNIA SOLUTIONS, INC.
EXHIBIT N2
ADDITIONAL ADDRESSES
COMPANY:
XXXX TO:
Controller
INSIGNIA
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
XXX
Telephone: 000 000-0000
Fax: 000 000-0000
E-mail:
SHIP TO:
Controller
INSIGNIA
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
XXX
Telephone: 000 000-0000
Fax: 000 000-0000
E-mail:
10
CONFIDENTIAL
Microsoft License Agreement for Desktop Operating System Products, #5110550216-5
dated October 1, 1998, between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS,
INC.
MICROSOFT GENERAL OEM BUSINESS TERMS
#5110550206 dated October 1, 1998
with Insignia Solutions, Inc., a corporation of Delaware, USA
OVERVIEW.
This General OEM Business Terms document ("Business Terms Document")
sets forth general business terms and conditions that the parties contemplate
will apply to any License Agreement(s) (as hereinafter defined) that Microsoft
Licensing, Inc., a Nevada, U.S.A. corporation ("MS") and the company specified
above ("COMPANY") may enter into between the date first set forth above and
October 31, 2001. This Business Terms Document does not grant any license
rights to any MS products. This Business Terms Document shall have no force or
effect except if and as incorporated into a License Agreement by agreement of
the parties.
1. DEFINITIONS.
(a) "Associated Product Materials" or "APM" shall mean a certificate of
authenticity, an end user license agreement, a product registration card,
and/or other materials designated by MS from time to time which COMPANY may
acquire from an Authorized Replicator.
(b) "Authorized Replicator" shall mean a third party approved by MS from
which COMPANY may acquire Product(s) reproduced in accordance with MS
specifications. MS shall provide COMPANY with a list of Authorized Replicators
and shall notify COMPANY from time to time of changes to the list.
(c) "COMPANY Subsidiary" shall mean a company listed in Exhibit X, in which,
on a class by class basis, more than fifty percent (50%) of the stock entitled
to vote for the election of directors is directly owned by COMPANY, but only
so long as such ownership exists.
(d) "Customer System" shall mean COMPANY's computer system product(s)
described in the Exhibit(s) C to the License Agreement for the Product. Unless
otherwise expressly specified in the applicable Exhibit C, a Customer System
shall be an assembled computer system which (i) is configured for use only by
a single user; (ii) is designed to use a video display and keyboard; and (iii)
includes at least a CPU, a motherboard, a hard disk drive, a power supply, and
a case. Unless otherwise provided in applicable Exhibits C or D to the License
Agreement, Customer Systems shall be marketed and distributed only under a
brand name which includes COMPANY's name.
(e) "XXXX" shall mean the end user license agreement for the Product which
shall consist of the applicable license and warranty terms for the specific
Product as determined by MS. The XXXX shall be available from the Authorized
Replicator.
(f) "Initial Term" shall mean the term of the License Agreement as set forth
in the Term section of the License Agreement as of the License Effective Date.
The Initial Term shall not include any extension to the term of the License
Agreement unless expressly agreed in writing by the parties.
(g) "License Effective Date" shall mean date specified as such in the License
Agreement.
(h) "License Agreement(s)" shall mean the separate License Agreement(s) between
MS and COMPANY, which set forth the specific license and terms for specific
Product(s), and which reference this Business Terms Document.
(i) "MSCORP" shall mean Microsoft Corporation, a Washington, U.S.A.
corporation.
(j) "Period" shall mean a period described in Exhibit B to the License
Agreement, if any, such as the "First Period."
(k) "Preinstalled Product Software" shall mean the Product software installed in
ROM or on a hard disk in accordance with the terms and conditions of the License
Agreement and the instructions contained in the Product Deliverables.
(1) "Product" shall mean the copyrighted and/or patented MS product(s)
(including, where applicable, Product software in object code form, Product end
user documentation, APM, and Product hardware) identified in the Exhibit(s) C to
the License Agreement(s). Only those Product(s) for which Customer Systems and
royalty rate(s) or, in the case of Product hardware, price(s) are specified in
the applicable Exhibit C to the License Agreement are licensed under the License
Agreement.
(m) "Product Deliverables" shall mean (i) Product software in object code form,
if applicable, (ii) installation utilities and related documentation, if
applicable; (iii) a single copy of Product end user documentation; (iv) one or
more units of Product hardware, if applicable, and (v) any other deliverables
identified in Exhibit C to the License Agreement or otherwise identified by MS
as Product Deliverables.
(n) "Product Release" shall mean a release of Product which MS designates as a
change in the digit(s) to the left of the decimal point in the Product version
number [(x).xx] or a change in the annual identifier (e.g., 96 or 1996). Any
Product for which no version designation is listed in the applicable Exhibit C
to the License Agreement shall be deemed to be version " I.O."
(o) "Reporting Period" shall mean the interval described in the Royalty Reports
and Payments Section of the License Agreement for which COMPANY shall submit its
royalty reports and payments.
(p) "Supplement" shall mean a release of a supplement to, or replacement of, any
portion of Product as MS may provide to COMPANY from time to time.
(q) "Suppliers" shall mean any and all entities (e.g., MSCORP) which license or
otherwise supply MS with Products or portions thereof for redistribution and
sublicense by MS.
(r) "Update Release" shall mean a release of Product which MS designates as an
increase in the digit(s) to the right of the tenths digit in the Product version
number [x.x(x)].
(s) "Version Release" shall mean a release of Product which MS designates as an
increase in the tenths digit in the Product version number [x.(x)x].
2. PRODUCT TERMS.
(a) Nothing in this Section shall be construed to be a grant of license with
respect to any Product. Any such rights will be granted only if and as specified
in the License Agreement.
(b) With respect to Supplements, MS may grant to COMPANY one or more
non-exclusive, limited additional rights, including without limitation, those
set forth in Exhibit F hereto, in a "Supplement Addendum" for such Supplement.
If COMPANY decides to exercise any such additional rights granted for a
particular Supplement, COMPANY shall fully comply with all of the terms and
conditions of the applicable Supplement Addendum, regardless of whether the
particular terms of the Supplement Addendum are described in Exhibit F.
(c) (i) COMPANY shall distribute Product end user documentation as set forth
in the License Agreement. In the event that MS designates some portion of the
Product end user documentation as optional, COMPANY shall make one (1) copy of
CONFIDENTIAL
Business Terms Document
such optional documentation available to the licensed end user of the Product
software either: (A) inside the Customer System package with the Product
software, hardware and required Product documentation, as applicable; or (B)
directly through an MS authorized fulfillment source in accordance with MS then
current specifications for fulfillment of Product end user documentation.
Product end user documentation shall not be available through any other COMPANY
distribution channel.
(ii) COMPANY may provide Product software on external media (i.e., diskette or
CD-ROM) to licensed end users of the Product software to replace a copy of
Product software originally distributed by COMPANY in accordance with the
License Agreement which is defective in media or reproduction directly through
an MS authorized fulfillment source in accordance with MS then current
specifications for fulfillment of Product software replacement media. Product
software replacement media shall not be available through any other COMPANY
distribution channel.
(iii) MS shall provide COMPANY from time to time with a list of fulfillment
sources authorized by MS.
(d) If COMPANY distributes the Product software (other than as Preinstalled
Product Software), COMPANY shall distribute the Product software on separate
media (e.g., separate diskettes, CD-ROM disc, etc.) from other products.
(e) COMPANY shall place Product packages inside Customer System packages and
install Product software on the hard disk drive or ROM of a Customer System
solely on COMPANY premises by COMPANY employees.
(f) COMPANY shall not reverse engineer, decompile or disassemble any Product
except as permitted by applicable law without the possibility of contractual
waiver. COMPANY acknowledges that information on interoperability of the
Product with other products is readily available. Except as necessary to
install Preinstalled Product Software, COMPANY may not reproduce Product or
any part of Product Deliverables. COMPANY shall make no use of Product
Deliverables except as described in the License Grant Section of the License
Agreement.
(g) COMPANY shall adapt the XXXX as may be required by the laws of any
non-U.S.A. jurisdiction in which COMPANY distributes the Product. COMPANY may
use its name in place of references to "PC Manufacturer" and/or "Manufacturer"
in the XXXX. Any printed XXXX for the Product distributed by COMPANY must be
identical to the on screen XXXX presented to the end user during Product setup,
if any.
(h) COMPANY agrees that it shall not distribute Product software or
documentation in encrypted form, except as otherwise specifically provided in
the License Agreement.
(i) COMPANY acknowledges that MS may refuse to fill COMPANY's orders for
Product, and/or require the Authorized Replicator to refuse to fill orders for
Product, in quantities beyond those which, in MS opinion, COMPANY will be able
to distribute, or make timely payment for, in compliance with the terms of the
License Agreement. COMPANY further acknowledges that MS may suspend COMPANY's
license rights under the License Agreement, refuse to fill COMPANY's orders for
Product, and/or require Authorized Replicator to refuse to fill COMPANY's orders
if (i) COMPANY or any COMPANY Subsidiary fails to comply with any provision of
the License Agreement or any other agreement between COMPANY or any COMPANY
Subsidiary and MS, or if (ii) Product licensed to COMPANY is available other
than inside Customer System package.
(j) If the License Agreement grants to COMPANY the right to grant license
rights to COMPANY Subsidiaries, COMPANY hereby irrevocably and
unconditionally guarantees each COMPANY Subsidiary's compliance with the
terms and conditions of the License Agreement(s). COMPANY agrees that it
shall be jointly and severally liable with each COMPANY Subsidiary for any
breach of the terms and conditions of the License Agreement by a COMPANY
Subsidiary. At least thirty (30) days prior to exercising any license rights
or receiving any confidential information under any License Agreement, each
COMPANY Subsidiary shall execute and deliver to MS the COMPANY Subsidiary
Agreement in the item indicated in Exhibit X. Subsidiaries of COMPANY (or any
other entities) which distribute Customer Systems received fully assembled
and packaged with Product in accordance with the License Agreement from
COMPANY or COMPANY Subsidiaries need not be listed on Exhibit X as COMPANY
Subsidiaries.
3. PAYMENT AND REPORTING.
(a) COMPANY shall pay and report to MS in accordance with the terms of the
License Agreement, subject to the following basic payment and reporting terms.
(b) COMPANY shall pay MS the initial payment amount(s) ("Initial Payment
Amount(s)"), if any, specified in Exhibit(s) C of each License Agreement upon
signing of such License Agreement. Provided COMPANY has complied with all
material terms and conditions of the License Agreement(s), such Initial Payment
Amount(s), after deduction, by set off or otherwise, of any outstanding amounts
or obligations due to MS, will be refunded to COMPANY within forty-five (45)
days of COMPANY's final royalty report and payment under the License Agreement.
COMPANY may not recoup the Initial Payment Amount(s) against royalties due to MS
or payments made to any Authorized Replicator.
(c) (i) Royalties and prices exclude any charges by Authorized Replicator for
units of Product or APM ordered by COMPANY. Royalties and prices also exclude
any taxes, duties, fees, excises or tariffs imposed on any of COMPANY's or
COMPANY's Subsidiaries' activities in connection with the License Agreement.
Such charges, taxes, duties, fees, excises or tariffs, if any, shall be paid
by COMPANY. In the event COMPANY fails to accrue any royalties due MS under a
License Agreement prior to its termination or expiration, MS may charge
COMPANY an administrative fee for each License Agreement in the amount of ten
thousand dollars (US$1O,000.00).
(ii) Per unit prices/royalties in a License Agreement are given on an "FCA"
or "Free Carrier" (MS shipping point) basis (per Incoterms, 1990 edition),
and exclude shipping and handling charges.
(iii) For Product(s) specified in the applicable Exhibit C to the License
Agreement as licensed on a "per system" basis, COMPANY shall pay MS the royalty
set forth in the applicable Exhibit C to the License Agreement for each Customer
System distributed or placed in use by or for COMPANY (or, in case of Type I
Products, the number of units of Product acquired by COMPANY, whichever is
greater). For Product(s) specified in the applicable Exhibit C to the License
Agreement as licensed on a "per copy" basis, COMPANY shall pay MS the royalty
rates set forth in the applicable Exhibit C to the License Agreement for each
unit of Product licensed, distributed, or placed in use by, or for, COMPANY (or,
in case of Type I Products, the number of units of Product acquired by COMPANY,
whichever is greater). For Product(s) specified in the applicable Exhibit C to
the License Agreement as licensed on a "per unit" basis, COMPANY shall pay MS
the royalty/price set forth in the applicable Exhibit C to the License Agreement
for each unit of Product acquired by COMPANY.
(iv) In addition, COMPANY shall pay MS the Localization Additional Royalty
or, in the case of Product hardware, the Localization Additional Price
specified in Exhibit(s) C to the
2
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
License Agreement, if any, for each unit of non-U.S.A. English version
of Product distributed, placed in use or acquired by or for COMPANY.
(v) Where multiple "Releases" (i.e., Update Releases, Version Releases, or
Product Releases), language versions, or media versions (e.g., MS-DOS and
MS-DOS ROM) of a Product are licensed for the same Customer Systems, COMPANY
may distribute only one (1) unit of Product hardware, and only one (1)
copy of Product software in addition to one (1) copy of Preinstalled Product
Software in one (1) language and Release for use with each such Customer System.
COMPANY shall pay MS the amount applicable to the Release and language version
shipped. Any Customer System licensed on a per system basis for more than one
Update Release or Version Release of a Product, but distributed without Product,
shall bear the base royalty for the most recent Release of Product licensed.
(vi) If, at any time, MS becomes aware of any distribution of Product in
violation of the License Agreement, or if COMPANY cannot properly account, in
accordance with Section 14(a), for any units of Product acquired by COMPANY
then, without limiting MS' remedies, MS may charge COMPANY for each such unit of
Product, the Default Charge specified for such Product in the applicable Exhibit
C to the License Agreement. COMPANY shall pay any such amounts within thirty
(30) days of the date of MS' invoice.
(d) In the event income taxes are required to be withheld by any non-U.S.A.
government on payments to MS required hereunder, and provided that COMPANY
promptly delivers to MS an official receipt for any such taxes withheld or other
documents necessary to enable MS to claim a U.S.A. Foreign Tax Credit, COMPANY
may deduct such taxes from the amount owed MS and shall pay them to the
appropriate tax authority. COMPANY will make certain that any taxes withheld are
minimized to the extent permitted by the applicable law.
(e) (i) Type I Products): For each Product identified as Type I in Exhibit C to
the License Agreement, COMPANY agrees that the following additional payment
provisions shall apply:
(A) MS shall invoice COMPANY each month during the term of the License
Agreement for Product royalties based on reports from MS authorized third
party service provider(s) (e.g., Authorized Replicators or other service
provider(s)) concerning shipments of such Product(s) to or on behalf of
COMPANY. MS' billing of COMPANY, based on reports from third party service
provider(s), shall not relieve COMPANY of any payment obligations under the
License Agreement. COMPANY shall make payments to MS within thirty (30) days
of the date of MS invoice.
(B) If in any calendar month during the term of the License Agreement, (1)
COMPANY identifies any discrepancies in MS' invoice(s) received during such
month, or (2) COMPANY distributes Customer Systems licensed for any
Product(s) on a "per system" basis without such Product(s), COMPANY shall
submit a report to MS within fifteen (15) days after the end of such month,
and fifteen (15) days after termination or expiration for the final full or
partial month. Any such reports shall be in the format specified by MS from
time to time and shall designate the number of each Customer System licensed
on a per system basis distributed without Product, together with the name
and version number(s) of the licensed Product(s) and/or specific details of
any discrepancy. MS will invoice COMPANY for any additional royalties due
or, subject to MS verification, credit COMPANY's account after review of
any such report(s).
(C) If, upon termination or expiration of the License Agreement,
COMPANY his inventory of any licensed Product(s) under such License
Agreement, COMPANY shall submit a report detailing such Product(s) in
inventory including the number of units, name(s), version number(s), and
other information as MS may request.
(D) After COMPANY submits the inventory report described in subsection (C)
above and provided COMPANY has complied with all terms and conditions of
the License Agreement, including without limitation Section 11 below, the
following shall apply. Those royalties corresponding only to that portion
of Product inventory consisting of the latest available Product Release
and for which a royalty previously had been paid to MS will be credited by
MS to COMPANY's account, after deduction, by setoff or otherwise, of any
outstanding amounts or obligations due to MS.
(E) MS or its authorized representatives may inspect COMPANY's premises,
books and records to verify COMPANY's credit request in subsections (C)
and (D) above. COMPANY shall provide such additional documentation as MS
may reasonably request to support and verify such request.
(F) If COMPANY has inventory of Product(s) acquired under another OEM
license agreement and for which COMPANY has not paid a royalty to MS as of
the License Effective Date of the applicable License Agreement for such
Product, COMPANY shall submit a report indicating the number of such units
in inventory within thirty (30) days of the License Effective Date of such
License Agreement. In the event that MS and COMPANY agree that COMPANY may
distribute such units under such License Agreement, MS shall invoice
COMPANY at the royalty rate in such License Agreement for such Product(s).
COMPANY shall pay such royalties within thirty (30) days of the date of
MS invoice. COMPANY shall thereafter be deemed licensed to distribute
such Product(s) under the terms of the License Agreement.
(ii) Type II Product(s): For each Product identified as Type II in Exhibit(s) C
to the License Agreement, COMPANY agrees that the following additional payment
provisions shall apply:
(A) COMPANY shall make royalty reports to MS within fifteen (15) days
after the end of each calendar month during the term of the License
Agreement, and fifteen (15) days after termination or expiration for the
final full or partial month thereof. MS shall invoice COMPANY for Product
royalties. COMPANY shall make consolidated (i.e., on behalf of COMPANY and
COMPANY Subsidiaries) payments to MS as specified in the attached Exhibit
NI within thirty (30) days of the date of MS invoice.
(B)In the event that COMPANY's report is not received by MS within the
above-specified period, COMPANY authorizes MS to xxxx COMPANY, and COMPANY
shall pay MS, based on reports submitted to MS by the MS authorized third
party service provider(s) for the subject reporting period and, at MS'
option, for all subsequent reporting periods during the term of the
License Agreement. MS' billing of COMPANY based on reports submitted by
third party service provider(s) shall not relieve COMPANY of any reporting
or payment obligations under the License Agreement.
(C) COMPANY's royalty reports shall be in the royalty report format in
Exhibit R or other format as MS may provide from time to time and shall
specify royalties for each Product and language version described in
Exhibit(s) C to the License Agreement.
3
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998, between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
(D) If, upon termination or expiration of the License Agreement, COMPANY
has inventory of any licensed Product(s), COMPANY shall submit a report
detailing Product(s) in inventory including the number of units, names,
version number(s), and other information as MS may request.
(iii) Type III Product(s): For each Product identified as Type III in
Exhibit(s) C to the License Agreement, COMPANY agrees that the following
additional payment provisions shall apply:
(A) COMPANY shall order units of Product from MS. COMPANY's orders
must be in writing and each order must be for the minimum number of
units of Product and in the increments specified in the applicable
Exhibit(s) C to the License Agreement for Product orders. Orders may be
submitted only by COMPANY and/or COMPANY Subsidiaries. COMPANY's order
shall clearly indicate the quantity, version number, and part number, if
applicable, of Product being ordered. Unless otherwise specified by MS in
writing, COMPANY's order shall be accompanied by payment at the unit price
identified in Exhibit(s) C to the License Agreement. COMPANY's order
payment shall be:
(1) made payable to the order of MS;
(2) in the amount of all monies due for such order; and
(3) submitted by wire transfer as specified in Exhibit N1.
Orders received without the required payment will not be processed. MS, in
its sole discretion and upon written notice to COMPANY, may instead
require COMPANY to remit payment to an intermediary at the time of
delivery of the order to COMPANY.
(B) COMPANY's orders shall be sent at least thirty (30) days prior to
the requested delivery date to the address listed for Product orders in
the License Agreement. MS may, with prior notice to COMPANY, elect to
specify a different address to which COMPANY shall send its Product
orders. COMPANY shall not submit purchase orders via electronic mail until
COMPANY has completed and returned to MS a Purchase Order by Electronic
Mail Authorization Form in the form available from MS.
(C) If MS does not require payment at time the order is submitted, (i)
COMPANY hereby grants MS a purchase money security interest in the Product
and shall, upon request of MS, execute any and all documents to protect
and perfect MS' security interest as MS may request; and (ii) payment
shall be due in accordance with the terms set forth by MS when credit is
granted.
(D) MS or its Suppliers may, without prior notice to COMPANY, elect to
cancel the production of Product. In such instances, any monies paid by
COMPANY to MS for unfilled orders of Product will be returned to COMPANY.
MS shall make reasonable efforts to notify COMPANY in advance of any such
cancellation.
(iv) Any Product(s) for which a billing Type is not specified in Exhibit(s)
C to the License Agreement shall be deemed to be a Type II Product, unless
otherwise specified in the License Agreement.
(f) (i) No additional royalty or price shall accrue for multiple copies of a
given release of Product software distributed with a Customer System as
permitted under the License Grant Section of the License Agreement (e.g., (1)
one copy of Preinstalled Product Software and one (1) copy of Product software
on external media).
(ii) No royalty shall accrue to MS for a commercially reasonable number
of units of Product software (A) used by COMPANY solely for testing systems;
or (B) shipped to replace copies detective in media or reproduction, provided
that such replacement copies are distributed in accordance with Section
2(c)(ii) at no charge to the end user, except for COMPANY's reasonable cost
of materials and shipping and handling costs: or unopened returned Product
for the month reported, not to exceed 8% of total monthly shipments as per
the royalty report.
(iii) If in any calendar month COMPANY assigns any units of Product
software for COMPANY's internal testing as provided in subsection (f)(ii)
above, COMPANY shall make a report to MS within fifteen (15) days after the
end of such month. and fifteen (15) days after termination or expiration for
the final full or partial month. Such report shall be in the format specified
by MS from time to time and shall designate the number of such Product
software units assigned to testing along with, for any Authorized Replicator
Product units used for testing, the corresponding certificate of authenticity
number for each such unit. MS will issue a credit to COMPANY's account for
any royalties paid for such units after MS' review and verification of
COMPANY's report.
(g) If the License Agreement includes Minimum Commitment Payments, the
following shall apply to such License Agreement:
(i) Minimum commitment and royalty payments made in one Period may not be
applied to minimum commitment payment obligations in another Period. Minimum
commitment and royalty payments made under one License Agreement may not be
applied to or recouped by minimum commitment payment obligations under any
other License Agreement.
(ii) The amount by which cumulative royalties during a Period exceed minimum
commitment amounts then payable for the same Period under a License Agreement
shall be calculated as of the end of each Reporting Period and the excess
amount shall be referred to as "Excess Royalties". Excess Royalties shall be
paid to MS in accordance with Subsection 3(e) above. Excess Royalties shall be
applied under a License Agreement to reduce future minimum commitment
payment(s) payable during the Period in which such Excess Royalties accrue.
(iii) To the extent that cumulative minimum commitment payments during a
Period exceed cumulative royalties for such Period under a License Agreement,
such excess shall be known as "prepaid royalties" and shall be recoupable
against future royalties under a License Agreement only during the Initial
Term of the License Agreement and only for the Product(s) licensed therein.
Prepaid royalties are not recoupable against payments made to Authorized
Replicator.
(iv) Once COMPANY has accepted any release of Product pursuant to Section 4
above, minimum commitment payments are not refundable.
(v) Any amounts credited to COMPANY in accordance with Section 3(e)(i)(D)
above, shall be limited to those royalties for which COMPANY's payments
constituted Excess Royalties under the terms of the License Agreement.
(vi) Each minimum commitment amount shall be payable on the date specified
in Exhibit B to the License Agreement.
(h) If the License Agreement does not include Minimum Commitment Payments,
the following shall apply to such License Agreement. If in any three monthly
reporting periods during the term of the License Agreement (whether or not
consecutive), COMPANY's reported shipments of the applicable Customer Systems
(for Product licensed on a per system basis) or Product (for Product licensed
on a per copy basis), respectively, are twenty percent (20%) or more below
COMPANY's estimated monthly volume specified in the Product table in the
applicable Exhibit C. COMPANY and MS shall negotiate an increase in the
royalty rate(s) to reflect COMPANY's lower shipment volumes. If, for any
reason,
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Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998, between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
MS and COMPANY are unable to agree upon new royalty rate(s) within thirty
(30) days after the date COMPANY'S royalty report is due for the third such
low-volume month, COMPANY'S royalty rate(s) for each Product included in the
volume estimate accompanying the royalty rate shall increase by twenty
percent (20%). Such increased royalty rate(s) shall be in effect for the
remainder of the term of the License Agreement commencing with the
monthly reporting period following the third low-volume month. Provided,
however, that if COMPANY's reported monthly volume returns to or exceeds
the original estimated monthly volume for any three (3) consecutive months
thereafter, COMPANY's royalty rate(s) shall be restored to the rate(s)
specified in the Product table in the applicable Exhibit C commencing with
the monthly reporting period following such three (3) consecutive months,
(i) (i) All reports submitted by COMPANY under this Section 3 shall be (A)
consolidated (i.e., on behalf of COMPANY and COMPANY Subsidiaries), (B) sent
as specified in the attached Exhibit N1; and (C) certified as complete and
correct and signed by a duly authorized officer or director of COMPANY.
(ii) A copy of COMPANY's reports shall be sent to MS electronically or
via facsimile in addition to the original copy sent in accordance with
Exhibit N1.
(iii)In the event that COMPANY's report is not received by MS within the
applicable time specified above, a five percent (5.00%) late reporting charge
shall be added to COMPANY's invoice.
(j) (i) All payments made by COMPANY under this Section 3 shall be: (A)
consolidated (i.e. on behalf of COMPANY and COMPANY subsidiaries); and (B)
sent as specified in the attached Exhibit N1.
(ii) A ten percent (10.00%) late charge and a one percent (1.00%) monthly
finance charge will be assessed on all amounts that are past due, including
receipts for foreign taxes withheld.
(k) COMPANY shall provide MS with a copy of its U.S.A. state resale exempt
certificate, if applicable, with the initial License Agreement which
references this Business Terms Document when it is returned for signature by
MS. If COMPANY is located in a jurisdiction which utilizes Value Added Tax or
sales tax numbers ("VAT Number") for tax identification purpose, COMPANY's
VAT Number shall be provided in the attached Exhibit N1.
(l) Upon request by MS, COMPANY will provide MS with COMPANY's current
audited financial statements.
4. DELIVERY AND LIMITED WARRANTY.
(a) For each Product licensed under a License Agreement referencing this
Business Terms Document, MS shall deliver, or cause to be delivered. Product
Deliverables to COMPANY.
(b) MS and its Suppliers shall have no liability for failure to deliver
Product Deliverables by any particular date. COMPANY shall not distribute for
revenue any release of any language version of a Product until MS delivers
Product Deliverables to COMPANY identified by MS as final Product
Deliverables and MS advises its OEM customers generally that Customer Systems
may be distributed with such release of language version of Product.
(c) Product Software. (i) MS warrants that Product software conforms
substantially to the Product end user documentation.
(ii) If Product software fails to conform substantially to the Product
end user documentation, then within thirty (30) days after MS' delivery to
COMPANY of Product Deliverables for each release of Product licensed
hereunder, COMPANY may report such deviations from end user documentation
("Deviations") to MS in writing. If COMPANY reports any Deviations prior to
acceptance, then MS shall have sixty (60) days to correct such Deviations.
Upon delivery of a corrected release of Product to COMPANY, COMPANY shall
have thirty (30) days in which to reject the Product software for failure to
conform substantially to the Product end user documentation.
(iii) If COMPANY does not report Deviations within the applicable period
described in Section 4(c)(ii) above, or if COMPANY distributes the Product to
a customer for revenue, COMPANY shall be deemed to have accepted the
Product. If MS fails to correct Deviations prior to acceptance, then as
COMPANY's sole remedy COMPANY may terminate the License Agreement with
respect to such release of Product,
(d) Product Hardware, (i) MS warrants to COMPANY that each unit of Product
hardware furnished under the License Agreement will, at the time of shipment.
be free from defects in materials and will conform to the Product end user
documentation. COMPANY shall be deemed to have accepted the Product hardware
unless COMPANY provides written notice of non-conformance as provided below.
(ii) COMPANY's remedy and MS' obligation under this limited warranty
shall be limited to, at MS' election, (1) return of the Product hardware for
credit to COMPANY's account; or (2) repair or replacement of any defective
Product hardware.
(iii) This limited hardware warranty applies only if:
(A) written notice of non-conformance and request for return authorization
is received by MS at the address specified for return authorization
requests in the License Agreement within thirty (30) days after shipment
to COMPANY;
(B) after MS' authorization, the Product hardware is returned to MS or
its designee; and
(C) after examination, MS determines to its satisfaction that the
Product hardware is non-conforming,
(iv) Any repair or replacement shall not extend the original warranty
period. This limited warranty shall not apply to Product hardware which MS
determines has been subject to misuse, neglect, improper installation,
repair, alteration, or damage either by COMPANY or another.
(v) COMPANY may return, in accordance with and subject to 4(d)(i) above,
an entire shipment of Product hardware which fails to meet an Acceptable
Quality Level of.65 under a Level II, Normal, Single sampling plan as
described in the then current US Military Standard Sampling Procedures
(MIL-STD-105E).
(vi) Additionally, if, within thirteen (13) months after shipment of the
Product hardware to COMPANY, Product hardware is found to be defective by
COMPANY's end user customer when used with the COMPANY Customer System with
which Product hardware was shipped, COMPANY may return the Product hardware
to MS for repair or replacement pursuant to the terms and conditions of the
warranty section of the XXXX provided that:
(A) COMPANY confirms that the Product hardware failure occurs while in use
with the original COMPANY Customer System with which Product hardware was
shipped;
(B) COMPANY confirms that the Product hardware failure is not related to a
failure of COMPANY's Customer System;
(C) COMPANY makes reasonable efforts to verify the Product hardware failure
is not related to an end users failure to clean or maintain the Product
hardware with reasonable care;
(D)written notice of nonconformance and request for return authorization
is received by MS at the address specified for return authorization requests
in the License Agreement within thirteen (13) months after shipment of such
Product hardware by MS to COMPANY,
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Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998, between MICROS0FT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
(E) after MS' authorization, the non-conforming Product hardware is
returned to MS or its designee;
(F) after examination, MS determines to its satisfaction that the Product
hardware is non-conforming; and
(G) any repair or replacement shall not extend the original warranty
period. This limited warranty shall not apply to Product hardware which MS
determines has been subject to misuse, neglect, improper installation,
repair, alteration, or damage either by COMPANY or another.
(e) Product may be returned for (at MS' option) credit, repair, or
replacement only in the event of a breach of the above limited
warranties. No returns will be allowed for any other reason. COMPANY
shall be responsible for all freight and other charges in connection with
delivery of repaired or replaced Product to COMPANY and COMPANY's end user
customers.
(f) MS makes no warranty with respect to defects in replication, media or
other materials acquired from Authorized Replicator(s); any warranty for such
materials shall be provided by the Authorized Replicator(s).
5. DEFENSE OF INFRINGEMENT CLAIM.
(a) MS shall defend COMPANY against, and pay the amount of any adverse final
judgment (or settlement to which MS consents) resulting from, third party
claim(s) (hereinafter "Indemnified Claims") that: (i) the Product(s) infringe
any copyright enforceable in any Included Jurisdictions (defined in Section
5(d), below); or (ii) the Product name(s) or trademark(s) ("Xxxx(s)") infringe
any trademark rights enforceable in the Included Jurisdictions; provided MS is
notified promptly in writing of the Indemnified Claim and has sole control
over its defense or settlement, and COMPANY provides reasonable assistance in
the defense of the same.
(b) In the event MS receives information concerning an intellectual property
infringement claim (including an Indemnified Claim) related to the Product(s)
or Xxxx(s), MS may at its expense, without obligation to do so, either (i)
procure for COMPANY the right to continue to distribute the alleged
infringing Product or Xxxx; or (ii) replace or modify the Product or Xxxx to
make it non-infringing, and in which case, COMPANY shall thereupon cease
distribution of the alleged infringing Product or Xxxx.
(c) MS and its Suppliers shall have no liability for any intellectual
property infringement claim (including an Indemnified Claim) based on
COMPANY's (i) manufacture, distribution, or use of any Product or Xxxx after
MS' notice that COMPANY should cease manufacture, distribution, or use of
such Product or Xxxx due to such a claim; or (ii) combination of a Product
with any other product, program or data; or (iii) adaptation or modification
of any Product. For all claims described in this Section 5(c), COMPANY shall
indemnify and defend MS and its Suppliers from and against all damages, costs
and expenses, including reasonable attorneys' fees.
(d) MS and its Suppliers shall have no obligation to COMPANY for any
Indemnified Claims which arise outside the geographical boundaries of the
United States, Canada, Australia, Japan, the European Union, and Norway
("Included Jurisdictions").
6. ADDITIONAL TERMS.
(a) COMPANY shall: (i) contractually obligate (e.g., by contract, invoice or
other written instrument) all distributors, dealers and others in its entire
distribution channels to comply with the License Grant Section of the License
Agreement; (ii) deliver copies of such contracts (or relevant portions
thereof) to MS upon request; (iii) promptly discontinue distribution of
Product to any such distributor, dealer or other in its distribution channel
which does not comply with the License Grant Section; and (iv) cooperate with
MS in investigating instances of distribution of Product which does not
comply with the License Grant Section.
(b) (i) COMPANY shall acquire all components of each unit of Product software
and documentation to be distributed with a Customer System (i.e., APM.
Product end user documentation, and Product software on external media, as
applicable) from a single Authorized Replicator and in a single package or
stock keeping unit. Provided, however, this shall not preclude COMPANY from
acquiring separate units of Product from multiple Authorized Replicators.
(ii) All orders placed with MS or Authorized Replicators, and payments to
the Authorized Replicators, shall be made by COMPANY or COMPANY Subsidiaries.
Shipments made by or for MS and Authorized Replicators may be delivered only
to locations owned or controlled by COMPANY, COMPANY Subsidiaries or, if
applicable, Third-Party Installers, as defined in any attached Exhibit 1.
COMPANY hereby certifies that all addresses to which COMPANY or COMPANY
Subsidiaries request Product delivered shall comply with the forgoing
requirement.
(c) (i) Where COMPANY distributes Preinstalled Product Software, COMPANY
shall place a notice over either the Customer System power switch in the
"off" position or the power inlet connector which informs the end user that
turning on the Customer System indicates acceptance of the terms of the
XXXX. COMPANY may use an alternative procedure, subject to MS review and
approval, provided that (i) the end user is required to take some affirmative
action to use or install the Product software, such as breaking a seal; (ii)
the end user is advised that taking such action indicates acceptance of the
terms and conditions of the XXXX; and (iii) the end user has the opportunity
to read the XXXX and the applicable warranty in its entirety before taking
such action.
(ii) If COMPANY enters registration information on behalf of end users in the
boxes provided for any on-screen end user registration process for the
Product software, COMPANY shall not enter its own name or make any other
false or fictional registrations. COMPANY may not (i) relieve end users of
their obligations to enter Certificate of Authenticity ("COA") registration
numbers in the on-screen end user registration process and to reply to
on-screen end user license agreement inquiries or (ii) insert COA
registration numbers or reply to end user license agreement inquiries for or
on behalf of end users.
(d) (i) The License Agreement does not include technical support by MS to
COMPANY, its distributors, dealers or end users. Technical support may be
available from MS, MSCORP or their subsidiaries pursuant to a separate
agreement.
(ii) COMPANY shall provide end user support for the Product(s) under
terms and conditions at least as favorable to the end user as the terms under
which COMPANY provides support for COMPANY's Customer Systems to end users
generally, but %vhich in no event shall be less than commercially reasonable
end user support. COMPANY further shall provide end users with telephone
customer support and to prominently display its customer support telephone
number for such assistance in or on Customer System documentation.
(e) COMPANY shall not advertise or otherwise market the Product(s) as
separate items, but shall clearly indicate in all marketing materials
relating to the Product(s) and Customer System(s) that the Product(s) are
available only as part of a Customer System. COMPANY shall not publish or
otherwise xxxx a separate price for the Product(s).
(f) COMPANY agrees that it will preinstall and begin shipment of the most
current licensed release of Product (i.e., Product Release,
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Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
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Version Release, Update Release or Supplement) on all licensed
Customer System models which are distributed on or after the sixtieth
(60th) day (or an earlier date, at COMPANY's option) following MS'
shipment of the corresponding Product Deliverables for such release.
Provided, however, if shipment of the Product Deliverables from MS
occurs between September 1st and October 31st of a given calendar year,
COMPANY agrees that it will begin shipment of most current licensed release
of Product no later than February 1st of the following year.
7. INTELLECTUAL PROPERTY NOTICES.
(a) COMPANY will not remove, modify, or obscure any copyright, trademark,
patent, or mask work notices that appear on the Product as delivered to
COMPANY. COMPANY recognizes that MS or its Suppliers may seek patent
registration for the Product.
(b) COMPANY shall market the Product only under the Product name(s) and
version number for such Product provided to COMPANY. COMPANY shall use the
appropriate trademark, product descriptor and trademark symbol (either "-TM-"
or "-Registered Trademark-" and clearly indicate MS' or its Suppliers'
ownership of its trademark(s) whenever the Product name is first mentioned in
any advertisement, brochure or in any other manner in connection with the
Product. COMPANY shall not, at any time, use any name or trademark
confusingly similar to an MS or its Suppliers' trademark, trade name and/or
product name. COMPANY shall undertake no action that will interfere with or
diminish MS' or its Suppliers' right, title and/or interest in MS' or its
Suppliers' trademark(s), trade name(s) or Product name(s). COMPANY shall,
upon request, provide MS samples of all COMPANY marketing literature which
uses Product name(s) or otherwise describes the Product.
(c) COMPANY shall not use or display any MS or Supplier logo (i.e., including
without limitation any stylized representation of the Microsoft name used by
MS or MSCORP) in its materials or packaging, except as provided by separate
written agreement with MS or its Supplier.
8. PROHIBITION AGAINST ASSIGNMENT AND SUBLICENSE OF LICENSE AGREEMENT(S).
The License Agreement(s), and any rights or obligations thereunder, shall not
be assigned or sublicensed by COMPANY (by contract, merger, operation of law,
or otherwise) except to COMPANY Subsidiaries if and as provided in the
License Agreement(s).
9. TERM OF LICENSE AGREEMENT(S).
Each License Agreement shall have its own term as defined therein.
10. DEFAULT AND TERMINATION.
(a) The non-defaulting party may terminate the License Agreement if any of
the following events of default occur: (i) if either party materially fails
to perform or comply with any provision of the License Agreement; (ii) if
COMPANY manufactures or distributes any MS or MSCORP product which is not
properly licensed under the License Agreement or another valid agreement with
MS, MSCORP, or an MS or MSCORP licensee; (iii) if Product is available other
than inside the COMPANY's Customer System package; (iv) if COMPANY becomes
insolvent, enters bankruptcy, reorganization, composition or other similar
proceedings under applicable laws, whether voluntary or involuntary, or
admits in writing its inability to pay its debts, or makes or attempts to
make an assignment for the benefit of creditors; or (v) upon default or
continuing default by COMPANY under any License Agreement or other agreement
between COMPANY and MS or MSCORP.
(b) Termination due to breach of Sections 2, 6(e), 8, 13, 14(a), 14(c) of
this Business Terms Document (if and to the extent incorporated into the
License Agreement) or of the License Grant Section, or (if applicable)
Exhibit S of the License Agreement shall be effective upon notice to the
defaulting party. Termination due to Section 10(a)(iv) shall be effective
upon notice or as soon thereafter as is permitted by applicable law. At the
option of the non-defaulting party, termination due to a breach of any
provision of the License Agreement may be effective upon notice to the
defaulting party if such party has received two (2) or more previous notices
of default during the term of the License Agreement (whether or not such
previous defaults have been cured). In all other cases, termination shall be
effective fifteen (15) days after notice of default to the defaulting party
if the defaults have not been cured within such period.
(c) In the event of COMPANY's default, MS may terminate the License
Agreement in its entirety or as to any individual Product(s). Termination of
the License Agreement as to any particular Product(s) will not affect the
terms and conditions of the License Agreement as they apply to the other
Product(s) licensed under the License Agreement.
11. OBLIGATIONS UPON TERMINATION.
(a) Within ten (10) days after the earlier of termination or expiration of
the License Agreement, COMPANY shall: (i) at MS' direction, either (A)
deliver to MS, (B) deliver to a third party authorized by MS for destruction
at COMPANY's expense, or (C) destroy, at COMPANY's expense, all units of
Product and all Product Deliverables; and (ii) provide written notice to MS
signed by an officer or director certifying that COMPANY has fulfilled the
applicable 11(a)(i) requirement. COMPANY and each COMPANY Subsidiary may,
however, retain one (1) unit of each Product for support purposes only.
Except as expressly provided in Section 3(e), there shall be no refund,
credit, or adjustment for amounts paid for Product(s) returned to MS in
accordance with this Section 11(a).
(b) Termination of the License Agreement as a result of COMPANY's default
shall result in acceleration of COMPANY's obligation to pay all sums COMPANY
contracted to pay under the License Agreement, (including minimum commitment
payments described in Exhibit B to the License Agreement, if such License
Agreement includes minimum commitment payments.)
(c) Upon termination or expiration of the License Agreement, all of
COMPANY's license rights therein shall cease and COMPANY shall cease all
distribution of Product. Sections 5, 12, 13, 14, 15 and 16 of this Business
Terms Document and Section S1(d) of Exhibit(s) S to the License
Agreement(s), if applicable, shall survive termination or expiration of the
License Agreement.
12. LIMITATION OF LIABILITY AND REMEDY.
(a) Total liability of MS and its Suppliers to COMPANY under the License
Agreement, including Sections 4 and 5 above, shall be limited to one hundred
percent (100.00%) of the amount having actually been paid by COMPANY to MS
under the License Agreement. COMPANY releases MS and its Suppliers from all
obligations, liability, claims or demands in excess of the limitation.
(b) The rights and remedies granted to COMPANY under Sections 4 and 5
constitute COMPANY's sole and exclusive remedy against MS, its Suppliers, and
their officers, agents and employees for any and all claims arising in
connection with the Product(s) or the Product Deliverables, including but not
limited to claims regarding MS' duties to correct any Deviations, MS'
delivery of Product(s) or Product Deliverables, or indemnification or
contribution from MS with respect to any infringement of the rights of a
third party, whether arising under statutory or common law or otherwise.
(c) SECTION 4 CONTAINS THE ONLY WARRANTIES MADE BY MS OR ITS SUPPLIERS. ANY
AND ALL OTHER WARRANTIES OF ANY KIND WHATSOEVER,
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Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
INCLUDING THOSE FOR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY,
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY
EXCLUDED. NEITHER MS NOR ITS SUPPLIERS MAKES ANY WARRANTY THAT THE PRODUCT
WILL OPERATE PROPERLY ON ANY CUSTOMER SYSTEM(S). COMPANY AGREES MS AND ITS
SUPPLIERS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
ECONOMIC OR PUNITIVE DAMAGES EVEN IF MS AND/OR ITS SUPPLIERS HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) (i) As partial consideration for the rights granted to COMPANY under the
License Agreement(s), COMPANY agrees not to (A) xxx, or (B) bring,
prosecute, assist or participate in any judicial administrative or
other proceedings of any kind against MS, its Suppliers, their
subsidiaries, or their licensees (including without limitation OEM
customers and end users) for infringement of COMPANY Patents (as
defined below) which occurs during the Immunity Period (as defined
below) on account of the manufacture, use, sale or distribution of:
1) Any releases of the Product(s) licensed to COMPANY under the License
Agreement, except as otherwise provided in subsection (iii), below; or
2) Future releases of the Product(s), or replacement or successor
product(s) to the Product, to the extent such future releases or
replacement or successor product(s) use or embody inventions used or
embodied in a version of such Product(s) licensed to COMPANY under the
License Agreement.
(ii) "COMPANY Patents" as used in this subsection 12(d) means all patents
throughout the world, other than design patents or the equivalent, owned
or acquired by COMPANY for inventions made prior to termination or
expiration of the License Agreement, or for which COMPANY has or
acquires rights prior to the termination or expiration of the License
Agreement. The "Immunity Period" shall commence upon the first to issue
and shall terminate upon the last to expire, of any of the COMPANY
Patents (in any jurisdiction).
(iii) In the event that MS provides COMPANY a new release of a Product under
the License Agreement, and COMPANY determines that such new release uses
or embodies inventions not used or embodied in a prior release of the
Product licensed to COMPANY thereunder, COMPANY may elect to not license
such new release by so notifying MS in writing within sixty (60) days
after its receipt and prior to COMPANY's shipment of such new release.
COMPANY's election under this paragraph shall not affect COMPANY's
obligations above with respect to any prior release(s) of the Product
licensed under the License Agreement.
(iv) In the event COMPANY assigns COMPANY Patents or rights to enforce
COMPANY Patents, COMPANY shall require as a condition of any such
assignment that the assignee agree to be bound bv the provisions of
this Section 12(d).
13. NONDISCLOSURE AGREEMENT.
COMPANY shall keep confidential: the Product Deliverables; the terms and
conditions of any License Agreement (including this Business Terms Document
as incorporated in a License Agreement) and any other non-public information
(including, without limitation: any and all MS and MSCORP product pricing
information, the terms and conditions of any proposed (or actual) license
agreement or other agreement concerning MS and MSCORP products, license
negotiations, as well as any information or correspondence relating to
released or unreleased MS and MSCORP software or hardware products, the
marketing or promotion of any MS and MSCORP product. and MS' and MSCORP's
business policies or practices) and know-how disclosed to COMPANY by MS or
MSCORP or any of their subsidiaries. However, COMPANY may disclose the terms
and conditions of the License Agreement, the Business Terms Document and any
other agreements or proposed agreements in confidence to its immediate legal
and financial consultants as required in the ordinary course of the COMPANY's
business.
14. AUDITS AND INSPECTIONS.
(a) During the term of the License Agreement and for three (3) years
thereafter, COMPANY shall keep all usual and proper records and books of
account, and all usual and proper entries relating to each Product licensed
sufficient to substantiate the number of copies of Product acquired,
distributed or otherwise disposed of by or for COMPANY, and the number of
Customer Systems distributed by or for COMPANY. COMPANY shall maintain on
COMPANY premises such records for itself and for each COMPANY Subsidiary
which exercises or has exercised rights under the License Agreement.
(b) In order to verify statements issued by COMPANY and COMPANY's compliance
with the terms of the License Agreement, MS may cause (i) an audit to be made
of COMPANY's and/or COMPANY's Subsidiaries' books and records; and/or (ii) an
inspection to be made of COMPANY's and/or COMPANY's Subsidiaries' facilities
and procedures. Any audit and/or inspection shall be conducted during regular
business hours at COMPANY's and/or COMPANY's Subsidiaries' facilities, with
or without notice. Any audit shall be conducted by an independent certified
public accountant selected bv MS (other than on a contingent fee basis).
(c) COMPANY shall provide MS' designated audit or inspection team access to
the relevant COMPANY's and/or COMPANY's Subsidiaries' records and facilities.
(d) Prompt adjustment shall be made to compensate for any errors or omissions
disclosed by such audit. Any such audit shall be paid for by MS unless
material discrepancies are disclosed. "Material" shall mean: (i) a breach of
the License Grants section of the License Agreement; or (ii) for reporting or
payment discrepancies, the lesser of Ten Thousand Dollars (US$10,000.00) or
five percent (5%) of the amount that was reported under the License
Agreement. If material discrepancies are disclosed, COMPANY shall pay MS for
the costs associated with the audit. Further, COMPANY shall pay MS an
additional royalty of twenty-five percent (25%) of the applicable royalty on
Exhibit(s) C to the License Agreement for each unit COMPANY failed to report
that is in excess of five percent (5%) of the number of units actually
reported by COMPANY under the License Agreement. In no event shall audits be
made more frequently than semi-annually unless the immediately preceding
audit disclosed a material discrepancy.
15. CONTROLLING LAW; ATTORNEYS'FEES.
(a) The License Agreement, including this Business Terms Document if and to
the extent incorporated therein, and all matters relating thereto shall be
construed and controlled by the laws of the State of Washington, and COMPANY
consents to jurisdiction and venue in the state and federal courts sitting in
the State of Washington. Process may be served on either party in the manner
set forth in Section 16 for the delivery of notices or by such other method
as is authorized by applicable law or court rule.
(b) If either MS or COMPANY employs attomeys to enforce any rights arising
out of or relating to the License Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees, costs and other expenses.
16. NOTICES. All notices, authorizations, and requests in connection with the
License Agrccment(s) shall be addressed as stated in attached
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Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
Exhibit NI (or to such other address as the party to receive the notice or
request so designates by written notice to the other) and shall be deemed
given on the day they are (i) deposited in the U.S.A. mails, postage prepaid,
certified or registered, return receipt requested; or (ii) sent by air
express courier, charges prepaid.
17. GENERAL.
(a) COMPANY agrees that it will not export or re-export Product to any
country, person, entity or end user subject to U.S.A. export restrictions.
COMPANY specifically agrees not to export or reexport Product (i) to any
country to which the U.S.A. embargoes or restricts the export of goods or
services, which as of December 31, 1996 includes, but is not necessarily
limited to: Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any
national of any such country who COMPANY knows intends to transmit or
transport the product(s) back to such country; (ii) to any end-user who
COMPANY knows will utilize Product in the design, development or production
of nuclear, chemical or biological weapons; or (iii) to any end-user who has
been prohibited from participating in U.S.A. export transactions by any
federal agency of the U.S.A. government.
(b) Neither this Business Terms Document nor any License Agreement
subsequently presented to COMPANY shall constitute an offer by MS; any
License Agreement(s) shall not be effective until signed by both parties.
Upon execution by both parties, the License Agreement (including this
Business Terms Document as incorporated in such License Agreement) signed by
both parties shall constitute the entire agreement between the parties with
respect to the subject matter thereof and merges all prior and
contemporaneous communications. Neither this Business Terms Document nor any
License Agreement shall be modified except by a written agreement signed on
behalf of COMPANY and MS by their respective duly authorized representatives.
Any statement appearing as a restrictive endorsement on a check or other
document which purports to modify a right, obligation or liability of either
party shall be of no force and effect.
(c) Neither the Business Terms Document, the License Agreement(s), nor any
terms and conditions contained in such documents, shall be construed as
creating a partnership, joint venture or agency relationship or as granting a
franchise.
(d) If any provision of the License Agreement or license of any particular
Product shall be held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions and license for remaining
Product(s), as applicable, shall remain in full force and effect.
(e) No waiver of any breach of any provision of the License Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made
in writing and signed by an authorized representative of the waiving party.
(f) COMPANY shall, at its own expense, promptly obtain and arrange for the
maintenance of all non-U.S.A. government approvals, if any, and
comply with all applicable local laws and regulations as may be necessary for
COMPANY's performance under the License Agreement.
(g) Product may be imported, distributed, or sold in or to a country or
territory only if allowed by, and in compliance with, all applicable laws and
regulations of such country or territory as well as all terms and conditions of
the License Agreement. COMPANY acknowledges that versions of certain Products
not localized for a specific market may be prohibited or subject to import and
distribution procedures or restrictions under such laws and regulations. By way
of example only, as of July 1, 1997, the U.S.A. English version of Microsoft
Excel 97 cannot be distributed to or for use in India, and games, entertainment
products and products with substantial amounts of video, graphics or similar
content may be prohibited or subject to specific import procedures under laws of
the People's Republic of China. COMPANY agrees to indemnify MS and its Suppliers
from and against all damages, costs and expenses (including reasonable
attorneys' fees) incurred by MS or its Suppliers in connection with any and all
claims, demands or actions arising from COMPANY's importation or distribution of
a Product in or to a country or territory not in compliance with the laws and
regulations of such country or territory.
(h) Any Product which COMPANY distributes or licenses to or on behalf of the
United States of America, its agencies and/or instrumentalities (the
"Government"), shall be provided with RESTRICTED RIGHTS in accordance with DFARS
252.227-7013(c)l(ii), or as set forth in the particular department or agency
regulations or rules, or particular contract which provide MS equivalent or
greater protection.
18. EXHIBITS.
The following Exhibits are part of this Business Terms Document:
Exhibit F - Supplement Rights
Exhibit I - Third Party Installers
Exhibit L - Language Versions Key
Exhibit N1 - Addresses
Exhibit R - Sample Royalty Report
Exhibit X - Company Subsidiaries
The terms of the attached Exhibit(s) shall supersede any inconsistent terms
contained in this Business Terms Document.
9
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998, between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
MICROSOFT LICENSING, INC. INSIGNIA SOLUTIONS, INC.
/s/ Xxxxx Xxxx /s/ X X Xxxxxx
------------------------------ ------------------------------
By (Signature) By (Signature)
Xxxxx Xxxx Xxxxxxx Xxxxxx
------------------------------ ------------------------------
Name (Print) Name (Print)
OEM Accounting Manager Chief Financial Officer, VP, Secretary
------------------------------ ------------------------------
Title Title
October 29, 1998 25 September 1998
------------------------------ ------------------------------
Date Date
------------------------------
COMPANY's seal or "chop"
------------------------------
10
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
EXHIBIT F
SUPPLEMENT RIGHTS
The purpose of this Exhibit is to set forth additional license rights and
related restrictions which may apply to Supplement(s) as may be provided by
MS from time to time. The actual additional license rights and related
restrictions for each Supplement shall be identified in the "Supplement
Addendum" for each such Supplement. The license rights shall be royalty-free
and, except as specified in the applicable Supplement Addendum, shall be
subject to the terms and conditions of the License Agreement. COMPANY's
license rights to Supplement(s) shall expire the earlier of; (i) termination
or expiration of COMPANY's license rights to the Product to which the
Supplement corresponds; or (ii) termination or expiration of the License
Agreement.
1. "Reproduction Rights", if granted, shall mean:
(a) Reproduce, in accordance with specifications provided by MS, the
Supplement software in object code form on external media (i.e., diskette or
CD-ROM) and end user documentation for the Supplement, if any.
(b) Reproduce Product names and Product trademarks on packaging, labels, and
end user documentation for the Supplement subject to the following restrictions:
(1) COMPANY's labeling and packaging for the Supplement shall clearly
indicate that the Supplement is a supplement to and/or replacement of the
Product provided by COMPANY for use on COMPANY's Computer Systems:
(ii) COMPANY will cause to appear on the container and labels of
Supplement the copyright, trademark and patent notice(s), as they appear
on the applicable release of Product Deliverables: and
(iii) COMPANY's name and/or trademarks shall not be displayed in
relation to Product name in a manner which suggests that COMPANY's name
and/or trademarks are part of the Product name. COMPANY's name and/or
trademarks shall be displayed on the packaging and disk labels more
prominently than the name "Microsoft".
2. "Distribution on External Media with Customer Systems Rights", if
granted, shall mean:
(a) Distribute one (1) copy of the Supplement software, reproduced in
accordance with the reproduction rights granted for such Supplement, with
each of COMPANY's licensed Customer Systems to be distributed with Product
subject to the following conditions:
(i) COMPANY shall include with each copy of the Supplement a XXXX
addendum which shall be substantially similar to the XXXX addendum included
with the Supplement as delivered by MS, except that it shall be adapted as
may be required by the laws of any non-U.S.A. jurisdiction in which COMPANY
distributes the Supplement.
3. "Distribution to Existing End Users Rights", if granted, shall mean:
(a) Distribute one (1) copy of the Supplement software, as acquired from an
Authorized Replicator if available, or reproduced in accordance with the
reproduction rights, if any, granted for such Supplement, to licensed end
users of COMPANY's Customer Systems originally distributed with the Product,
subject to the following conditions:
(i) The Supplement shall be distributed directly from COMPANY or an
MS-authorized fulfillment source:
(ii) COMPANY shall include with each copy of the Supplement a XXXX
addendum which shall be substantially similar to the XXXX addendum included
with the Supplement as delivered by MS, except that It shall be adapted as
may be required by the laws of any non. U.S.A. jurisdiction in which COMPANY
distributes the Supplement, and
(iii) COMPANY shall offer the Supplement at no charge except that
COMPANY may charge its reasonable cost of materials and shipping and handling
costs.
4. "Distribution via Bulletin Boards Rights", if granted, shall mean:
(a) Post and maintain the object code version of the Supplement on COMPANY's
point to point communication link by modem (not Internet) bulletin board
xxxxx(s) ("BBS") for distribution to end users of COMPANY's Customer Systems
originally distributed with Product, subject to the following conditions:
(i) COMPANY shall ensure that each copy of the Supplement includes a
XXXX addendum which is substantially similar to the XXXX addendum included
with the Supplement as delivered by MS, except that it shall be adapted as
may be required by the laws of any non-U.S.A. jurisdiction in which COMPANY
distributes the Supplement: and
(ii) COMPANY shall offer the Supplement at no charge to end users.
5. "Distribution via Internet Link Rights", if granted, shall mean:
(a) Create and maintain a link on COMPANY'S Internet home page(s) to MS' copy
of the Supplement on MS' Internet home page(s), at the Universal Resource
Locator(s) listed in the Supplement Addendum.
6. "Distribution via Internet Page Rights", if granted, shall mean:
(a) Post and maintain the object code version of the Supplement on
COMPANY's home page(s) on the Internet for distribution to end users of
COMPANY's Customer Systems originally distributed with Product, subject to
the following conditions:
(i) COMPANY shall include with each copy of the Supplement a XXXX
addendum which is substantially similar to the XXXX addendum included with
the Supplement as delivered by MS, except that it shall be adapted as may
be required by the laws of any non-U.S.A. jurisdiction in which the
Supplement is distributed: and
(ii) COMPANY shall offer the Supplement at no charge to end users.
7. "Other Rights", if granted, and restrictions shall be as set forth In
the applicable Supplement Addendum.
11
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1.
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
EXHIBIT 1
COMPANY USE OF THIRD PARTY INSTALLERS
Except as expressly provided in this Exhibit 1, COMPANY shall not reproduce,
duplicate, copy or otherwise permit the installation of Product software or
placement of the Product packages inside Customer System packages except on
COMPANY premises bv COMPANY employees. COMPANY may engage a third party
installer specifically approved in writing by MS ("Third Party Installer") to
install the Preinstalled Product Software for COMPANY on the Customer System
hard disk or ROM pursuant to Section 11(a)(i) of the License Agreement,
Section I(k) of the Business Terms Document and/or place the Product packages
inside the Customer System packaging in accordance with Section II(a)(ii)
of the License Agreement provided that all of the conditions listed below
are and remain satisfied.
(a) COMPANY shall provide MS with the name, address, and business profile
in the English language (including years in business, ownership profile,
tradenames used, nature of principle business activities, and summary of any
prior experience with installation or replication of MS products) of any
Third Party Installer COMPANY intends to engage for installation of the
Product(s) at least sixty (60) days before COMPANY intends to have the Third
Party Installer begin work for COMPANY. The Third Party Installer must be
approved in writing by MS prior to beginning work.
(b) COMPANY shall enter into a written agreement with the Third Party
Installer (hereinafter "Installation Agreement") that expressly provides that
MS is a third party intended beneficiary of the Installation Agreement with
rights to enforce such agreement, and that requires the Third Party Installer:
(1) to comply with obligations identical to those imposed on COMPANY
by Sections II(a), II(e), II(f) of the License Agreement and Sections 2(b),
2(d), 2(e), 2(f), 2(h), 6(c), 7(a), 11, 13, 14 and 17(a) of the Business Terms
Document;
(2) to consent to venue and jurisdiction in the state and federal
courts sitting in the State of Washington with respect to any action brought
by MS to enforce its rights under the Installation Agreement;
(3) to provide access to Third Party Installer premises to audit or
inspection team(s) sent on behalf of MS or COMPANY, with or without notice, in
order that such team may perform an audit of the Third Party Installer's books
and records and/or an inspection of the Third Party Installer's procedures to
determine compliance with the terms of the Installation Agreement and the
Business Terms Document;
(4) to halt reproduction of the Product upon notice from COMPANY or
MS of the suspension, termination, or expiration of the License Agreement;
(5) to distribute the Customer Systems with Preinstalled Product
Software only to COMPANY, COMPANY Subsidiaries, and/or COMPANY resellers and
distributors on behalf of COMPANY;
(6) to pay MS' or COMPANY's attorneys' fees if COMPANY or MS employs
attorneys to enforce any rights arising out of the Installation Agreement;
(7) to report to MS, in the form provided by MS, information
concerning Products installed including, without limitation, the number of
units of each Product installed and/or the number of packages inserted,
corresponding COMPANY model name(s), and shipment destination and the number
of units of Product packages in inventory; and
(8) to maintain the inventory of Product packages received from
COMPANY or the Authorized Replicator on behalf of COMPANY, if any, separate
from inventory of Product packages, if any, in the Third Party Installer's
possession for other MS OEMs (including the Third Party Installer, if the
Third Party Installer is an MS OEM).
(c) In order to distinguish each Product package from Product packages of
other MS OEMs, prior to delivery of any Product to any Third Party installer,
COMPANY shall require the Authorized Replicator to place COMPANY's name on a
conspicuous location on each Product package delivered to the Third Party
Installer by or on behalf of COMPANY.
(d) COMPANY shall report to MS within fifteen (15) days of the end of each
calendar month, the number of units of each Product which the Third Party
Installer shipped (1) to COMPANY or COMPANY's Subsidiaries, or (2) on behalf
of COMPANY, to COMPANY's resellers and distributors during such month.
(e) COMPANY hereby agrees to cease use of any Third Party Installer upon
receipt of written notice from MS.
(f) COMPANY hereby unconditionally and irrevocably guarantees the Third
Party Installer's fulfillment of the applicable obligations imposed by the
License Agreement and/or the Installation Agreement.
(g) COMPANY hereby indemnifies MS and its Suppliers for all damages
(including attorneys' fees) of any kind in connection with the Third Party
lnstaller's activities for COMPANY, including, without limitation, damages
resulting from: (1) a breach of the terms of the License Agreement and/or the
Installation Agreement, or (2) any and all unauthorized reproduction and/or
distribution of any portion of the Product by the Third Party installer.
(h) Within thirty (30) days of COMPANY's execution of the Installation
Agreement with each Third Party Installer, COMPANY shall provide a copy of
such agreement to MS at the address for notices specified in Exhibit N of the
Business Terms Document. If the Installation Agreement is not completed in
the English language, COMPANY shall also provide an accurate and complete
English translation thereof.
(i) COMPANY shall promptly notify MS of the termination, expiration or
significant modification of the terms of the Installation Agreement.
(j) Sections (f), (g), and (h) of this Exhibit 1 shall survive any
termination or expiration of this Exhibit 1.
12
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
EXHIBIT I
LANGUAGE VERSIONS KEY
The codes listed in the table below are used to describe the corresponding
language version for licensed language version(s) in Exhibit C to the License
Agreement(s), unless an alternate language key is provided in the Exhibit C.
MS may provide COMPANY notice of a revised Language Version Key reflecting
additional language version(s) and corresponding code(s) from time to time.
Code Language Version Code Language Version
---- ---------------- ---- ----------------
AF Afrikaans PT Portuguese
AR Arabic RO Romanian
BG Bulgarian RU Russian
CA Catalan SI Singhalese
CS Czech SK Slovak
DA Danish SL Slovenian
DE German SR Serbian
EL Greek SV Swedish
EN English (USA) TH Thai
ES Spanish TR Turkish
ET Estonian UK Ukranian
EU Basque VI Vietnamese
FA Farsi XA English (Australian)
FL Finnish XC Portuguese (Brazilian)
FR French XD French (Canadian)
GL Galician XT Chinese - Simplified
HU Hungarian XV English (Canadian)
IN Bahasa XX Spanish (Latin American)
IT Italian XZ English (UK)
IW Hebrew YD Arabic, Xxxxxx
XX Japanese YL Eastern European (English)
KO Korean YX Croatian
LT Lithuanian ZH Chinese - Traditional
LV Latvian ZY Pan European (English)
NL Dutch
NO Norwegian
PA Punjabi
PL Polish
13
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated
October 1, 1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
EXHIBIT N1
ADDRESSES
COMPANY: MS:
-------- --
NOTICES: NOTICES:
MICROSOFT LICENSING, INC.
Xxxxxxx Xxxxxx 0000 Xxxx Xxxx
INSIGNIA SOLUTIONS, INC. Xxxx, XX 00000-0000
00000 Xxxxxxx Xxxxxx X.X.X.
Xxxxxxx, XX 00000-0000 Attn.: General Manager
USA
With copies to:
Telephone: 000 000-0000 MICROSOFT CORPORATION
Fax: 000 000-0000 One Microsoft Way
E-mail: Xxxxxxx, XX 00000-0000 XXX
Attn.: Law & Corporate Affairs
Re: Microsoft Licensing, Inc. OEM Sales & Marketing
Fax: x0-000-000-0000
With copy to: MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxx Xxxxxxx Xxxxxxx, XX 00000-0000 XXX
INSIGNIA SOLUTIONS, INC. Attn: Vice President OEM Sales & Marketing
00000 Xxxxxxx Xxxxxx Re: Microsoft Licensing, Inc. OEM Sales & Marketing
Xxxxxxx, XX 00000-0000
XXX OTHER CORRESPONDENCE:
MICROSOFT CORPORATION
Telephone: 000 000-0000 One Microsoft Way
Fax: 000 000-0000 Xxxxxxx, XX 00000-0000 XXX
E-mail: Attn: OEM Sales & Marketing Department
Re: Microsoft Licensing, Inc. OEM Sales & Marketing
Fax: x0-000-000-0000
Xxx Xxxxxxx
INSIGNIA SOLUTIONS, INC.
00000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
XXX
Telephone: 000 000-0000
Fax: 000 000-0000
E-mail:
COMPANY Support
telephone no: 000 000-0000
COMPANY VAT Number:
Reports & Payments to MS
Reports: Payments:
-------- ---------
Royalty reports shall be made to: Payments shall be made by wire transfer to:
MICROSOFT LICENSING, INC. MICROSOFT LICENSING, INC.
0000 Xxxx Xxxx c/o NationsBank of Texas, N.A.
Xxxx, XX 00000-0000 Xxxxxx, XX 00000 U.S.A
U.S.A. ABA# 11100001-2
Attention: OEM Finance SWIFT Code: NBKUS44DAL
Fax: x0-000-000-0000 Account # 3750891058
Regarding: Microsoft OEM Collections
14
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
or to such other address or account as MS may specify from time to time. COMPANY
shall ensure that the regarding line stated above, the MS license number for the
License Agreement, and the MS invoice number, if any, are specified on each wire
transfer payment made pursuant to the License Agreement(s).
15
CONFIDENTIAL
Microsoft General OEM Business Term Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
EXHIBIT R
ROYALTY REPORT
COMPANY NAME: _______________
LICENSE #: __________________
REPORTING PERIOD: ___________
REPORT DUE: _________________
Prod. 1 Prod.2 Prod.3 Prod.4 Prod.5 Prod.6 Prod.7
---------------------------------------------------------------------------
Customer System
Model Name or Product Units/
Model Number Royalty Type
--------------------------------------------------------------------------------------------------------------------------------
1 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
2 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
3 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
4 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
5 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
6 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
7 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
8 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
9 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
10 "Per System" units
"Per Copy" units
--------------------------------------------------------------------------------------------------------------------------------
SUMMARY
--------------------------------------------------------------------------------------------------------------------------------
Total Units "Per System" units 0 0 0 0 0 0 0
"Per Copy" units 0 0 0 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------
Enter the number of localized version
units shipped for each Product
--------------------------------------------------------------------------------------------------------------------------------
16
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated
October 1, 1998 between MICROSOFT LICENSING, INC. and INSIGNIA
SOLUTIONS, INC.
EXHIBIT R
(Continued)
Dollar Recap
-------------------------------------------------------------------------------------------------------------
Product 1
-------------------------------------------------------------------------------------------------------------
"Per System" Activity "Per Copy" Activity
Amount Amount
Units Royalty Quantity Due Units Royalty Quantity Due
----- ------- -------- ------ ----- ------- -------- ------
1 to 0 $0.00 0 $0.00 1 to 0 $0.00 0 $0.00
$0.00 $0.00
+ $0.00 + $0.00
-------- -------
0 0
-------------------------------------------------------------------------------------------------------------
-----------------------------------------------------
Localized Version Activity
Amount
Royalty Quantity Due
------- -------- ------
$0.00 0 $0.00 Product Total $0.00
---------------------------------------------------- -----------------------------------------
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
Product 2
-------------------------------------------------------------------------------------------------------------
"Per System" Activity "Per Copy" Activity
Amount Amount
Units Royalty Quantity Due Units Royalty Quantity Due
----- ------- -------- ------ ----- ------- -------- ------
1 to 0 $0.00 0 $0.00 1 to 0 $0.00 0 $0.00
$0.00 $0.00
+ $0.00 + $0.00
-------- -------
0 0
-------------------------------------------------------------------------------------------------------------
-----------------------------------------------------
Localized Version Activity
Amount
Royalty Quantity Due
------- -------- ------
$0.00 0 $0.00 Product Total $0.00
---------------------------------------------------- -----------------------------------------
-------------------------------------------------------------------------------------------------------------
Please send report to: -------------------------------
Microsoft Licensing, Inc. Total Reported $0.00
OEM Accounting Services -------------------------------
FAX: (0) 000-000-0000
-------------------------------------------------------------------------------
The undersigned hereby certifies that he/she is duly authorized by COMPANY to
complete this report, that the title listed below is his/her true and correct
title, and that this report is complete and correct.
Report completed by:
-------------------------------- ------------------
Signature Date
-------------------------------- ------------------
Print name and title Telephone Number
-------------------------------------------------------------------------------
17
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated
October 1, 1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS. INC.
EXHIBIT X
COMPANY SUBSIDIARIES
COMPANY Subsidiaries authorized to exercise rights under the License
Agreement are:
COMPANY shall provide MS at least thirty (30) days prior written notice of the
name and address of each additional COMPANY Subsidiary that COMPANY wishes to
add to Exhibit X. Additional COMPANY Subsidiaries may not exercise any rights
under the License Agreement(s) until MS approves such request in writing. Each
COMPANY Subsidiary, whether listed above or subsequently approved by MS, shall
execute and submit to MS a COMPANY Subsidiary Agreement in the form provided
below prior to exercising any rights under the License Agreement(s).
[SAMPLE FORM: To be printed on COMPANY Subsidiary's letterhead.]
COMPANY SUBSIDIARY AGREEMENT
For good and valuable consideration, _____________________, a
corporation of __________________________("COMPANY Subsidiary") hereby
covenants and agrees with Microsoft Licensing, Inc., a Nevada U.S.A.
corporation ("MS") that COMPANY Subsidiary will comply with all obligations
of Insignia Solutions, Inc., a corporation of Delaware, USA ("COMPANY")
pursuant to all License Agreements between COMPANY and MS that incorporate by
reference that certain General OEM Business Terms Document #5110550206
between MS and COMPANY dated October 1, 1998 (the "Business Terms Document").
COMPANY Subsidiary acknowledges that its agreement herein is a condition for
COMPANY Subsidiary to exercise any of the rights sub-licensed by COMPANY to
COMPANY Subsidiary pursuant to the terms of the License Agreement(s). COMPANY
Subsidiary shall be jointly and severally liable to MS and its Suppliers for all
obligations related to COMPANY Subsidiary's exercise of license rights or
receipt of confidential information under the License Agreement(s), including
but not limited to the payment of royalties for Product.
Capitalized terms used herein and not otherwise defined shall have the
same meaning as in the License Agreement(s).
IN WITNESS WHEREOF, COMPANY Subsidiary has executed this agreement as of the
date set forth below. All signed copies of this agreement shall be deemed
originals.
---------------------------------------
(COMPANY Subsidiary)
--------------------------------------- ------------------------------
Signature Title
--------------------------------------- ------------------------------
Name (Print) Date
18
CONFIDENTIAL
Microsoft General OEM Business Terms Document #5110550206-2 dated October 1,
1998 between MICROSOFT LICENSING, INC. and INSIGNIA SOLUTIONS, INC.
